THE 


First  Reformed  Presbyterian  Church 


'  CASE. 


COMMONWEALTH,  ex  rel.  GORDON,  et  al. 


vs. 


WILLIAMS,  etal. 


A  History  of  the  Case,  the  Pleadings,  the  Arguments 

of  the  Counsel  for  the  Defendants,  and  the 

Charge  of  Mr.  Justice  Williams. 


. 


BOURQUIN  &  WELSH, 

LAW  BOOKSELLERS,  PUBLISHERS,  AND  IMPORTERS, 

r,HirJ^T3E!L,T3IIIA. 

'1871. 


■ 


. 


TV 


% 


the  1937 


First  Reformed  Presbyterian  Church 


CASE. 


COMMONWEALTH,  ex  rel.  GORDON,  et  al. 


vs. 


WILLIAMS,  etal. 


A  History  of  the  Case,  the  Pleadings,  the  Arguments 

of  the  Counsel  for  the  Defendants,  and  the 

Charge  of  Mr.  Justice  Williams. 


•    •   BOURQUIN  &  WELSH, 
LAW  BOOKSELLERS,  PUBLISHERS,  AND  IMPORTERS, 
PHILADELPHIA. 

1871. 


JAS.  B.  BODGERS  CO., 

ELECTEOTVPKKS   AND   l'BWTICHB. 

PHILADELPHIA. 


History  of  the   Case. 

The  First  Reformed  Presbyterian  Congregation  in  the  City  of 
Philadelphia,  was  organized  about  the  year  1800,  incorporated  on 
19th  March,  1816,  under  the  Act  of  6th  April,  1791,  and  has  from 
its  organization  been  connected  with  the  Reformed  Presbyterian 
Church.  Since  1854  the  congregation  has  occupied  a  church 
building  situate  on  the  East  side  of  Broad  Street,  below  Spruce 
Street,  which  building  had  been  erected  at  a  cost  of  $65,720.24, 
$12,883.25  of  which  had  been  realized  from  the  sale  of  another 
church  formerly  owned  by  the  congregation,  and  more  than 
$47,000  of  which  had  been  contributed  by  those  who  now  adhere 
to  the  Defendants  in  the  suit,  or  was  collected  by  them  from  their 
friends  without  the  congregation. 

In  1868,  on  the  first  Monday  of  January,  the  charter  day  for  the 
election  of  Trustees,  there  were  two  tickets  in  the  field,  the  one 
having  the  names  of  Messrs.  Ray,  Graham,  Johnston,  Kerr,  Wil- 
liams, Walker,  and  McBride,  representing  the  Defendants'  party, 
and  the  other,  having  the  names  of  Messrs.  Young,  Biggerstaff, 
Taylor,  Gordon,  and  James  Stewart,  representing  the  Relators' 
party,  together  with  Messrs.  Graham  and  Johnston,  who  were 
therefore,  nominated  by  both  parties.  As  each  voter  deposited  his 
ballot,  he  gave  his  name  to  the  Tellers,  who  noted  it. 

"  At  the  conclusion  of  the  balloting,  and  previous  to  the  report 
of  the  Tellers,  it  was  on  motion  ordered  that  the  votes  polled  re- 
main in  the  custody  of  the  Tellers  until  the  lists  of  the  parties 
voting  be  submitted  to  the  Session  and  Board  of  Trustees  for  their 
examination,  in  order  to  ascertain  whether  all  the  votes  cast  were 
legal,  protests  against  certain  votes  having  been  entered  during  the 
progress  of  the  balloting,  and  no  certificates  of  election  to  be 
given  until  it  had  been  ascertained  that  no  illegal  votes  had  been 
cast.  Several  other  motions  were  offered  touching  the  question, 
but  were  afterwards  withdrawn.     It  was  then  asked,  could  not  the 

4 

(i  ) 


votes  be  counted  and  a  report  of  the  same  made  to  the  meeting? 
After  some  discussion  this  was  finally  agreed  to,  with  the  under- 
standing that  the  validity  of  the  election  be  under  the  restriction 
imposed  by  the  former  resolution.  The  Tellers  then  announced 
that  James  Graham  had  received  471  votes,  Thomas  Johnston  467, 
Ephraim  Young  264,  John  Biggerstaff  260,  Robert  C.  Taylor  257, 
George  Gordon  255,  James  Stewart  255,  William  Ray  234,  Charles 
Williams  227,  Thomas  M.  Kerr  226,  Abraham  Walker  221,  Fran- 
cis McBride  219,  James  McLeod  7,  Rohert  Fletcher  7,  James  H. 
Windrim  4." 

The  Session  and  Board  of  Trustees  met  from  time  to  time  in 
the  performance  of  their  duty  as  Arbitrators,  and  on  the  13th  of 
February,  1871,  they  presented  reports  to  the  congregation,  setting 
forth  the  fact  that  127  illegal  votes  had  been  cast. 

Messrs.  Ray,  Graham,  Johnston,  and  Kerr,  who,  with  Messrs. 
Young  and  James  Stewart,  were  the  Trustees  for  1867,  holding 
the  election  of  1868  to  be  a  nullity,  determined  to  "  hold  over" 
until  the  candidates  on  the  Relators'  ticket  had  established  their 
right  by  legal  proceedings.  For  the  purpose  of  so  establishing 
their  right,  Mr.  Young  and  his  associates,  then  represented  by 
Hon.  Eli  K.  Price,  and  J.  Sergeant  Price,  Esq.,  filed  a  bill  in 
Equity  in  the  Supreme  Court  (January  Term,  1868,  No.  47) 
against  the  Trustees  in  possession,  praying  for  a  decree  declaratory 
of  the  Complainants'  title,  and  an  injunction  to  restrain  the  De- 
fendants from  keeping  them  out  of  possession.  The  Defendants, 
represented  by  Hon.  Wm.  A.  Porter,  Chris.  Stuart  Patterson,  Esq., 
and  James  C.  Chambers,  Esq.,  filed  an  answer. 

An  Examiner  was  appointed,  and  after  considerable  testimony 
had  been  taken  on  the  part  of  the  Complainants,  they  discontinued 
the  suit. 

Pending  the  said  suit,  the  Complainants  therein  attempted  to 
interfere  with  the  Defendants  in  possession,  in  their  collection  of 
the  pew-rents,  when,  upon  Bill  filed,  (January  Term,  1868,  No.  63) 
and  motion  for  an  Injunction  heard  upon  affidavits,  Mr.  Chief-Jus- 
tice Thompson,  sitting  at  Msi  Prius,  held,  that,  pending  the  ad- 
judication of  the  Complainants'  rights,  the  Trustees  for  1867  were 
entitled  to  hold  over,  and  that,  as  Trustees  de  facto,  they  would  be 
protected  in  the  performance  of  the  duties  of  their  offices.  He, 
therefore,  granted  an  Injunction. 


(  Hi) 

The  Reformed  Presbytery  of  Philadelphia  being  informed  that 
there  were  dissensions  in  the  First  Congregation,  appointed  at  its 
meeting,  14th  May,  1868,  a  commission  "to  investigate  the  diffi- 
culties existing  in  the  First  Church,  with  a  view,  if  possible,  to 
restore  peace  and  harmony." 

That  Commission  met,  but  the  withdrawal  of  the  Relators'  party 
from  the  congregation  prevented  the  accomplishment  of  its  pacific 
purpose. 

The  General  Synod  assembled  in  annual  meeting  at  Pittsburg, 
the  20th  of  May,  1868.  To  that  Synod  Messrs.  Gordon,  Young, 
Stewart,  Biggerstaff,  Taylor,  Guy,  McMurray,  and  others 
applied  by  "remonstrance "  for  redress  against  the  Trustees  in 
possession.  In  reply  to  this  "remonstrance,"  Synod  adopted 
a  preamble  and  series  of  resolutions,  inter  alia,  referring' 
"•the  whole  matter  pertaining  to  the  difficulties  existing  in 
the  First  Reformed  Presbyterian  Church  in  Philadelphia,  to 
a  Commission  of  General  Synod,  who  shall  be  clothed  with 
synodical  powers  and  have  authority  to  issue  the  whole  case," 
and  directing  the  Commission  to  meet  in  the  church,  on 
June,  1868.  The  Synod  at  that  Session  arbitrarily  and  illegally 
suspended  Mr.  George  H.  Stuart,  (who,  it  may  be  stated,  without 
fear  of  contradiction,  had  done  more  for  the  First  Congregation, 
and  more  for  the  denomination  at  large,  than  any  other  member  of 
that  Church,  living  or  dead)  from  the  membership  of  the  church  for 
the  alleged  crimes  of  using  in  the  worship  of  God  "imitations  and 
uninspired  compositions  called  Hymns,"  and  of  communing  "with 
others  in  other  churches  in  sealing  ordinances." 

The  Reformed  Presbytery  of  Philadelphia,  at  its  meeting  on  12th 
June,  1868,  adopted  a  series  of  preambles  and  resolutions,  assert- 
ing the  proceedings  of  Synod  in  appointing  a  Commission  and  in 
suspending  Mr.  Stuart,  to  be  contrary  to  the  standards  of  the  Re- 
formed Presbyterian  Church,  to  its  Book  of  Discipline,  to  its  terms 
of  Communion,  to  its  formula  for  ordination,  and  to  numerous  acts 
upon  its  records;  and,  therefore,  suspending  the  relations  of  said 
Presbytery  to  the  said  Synod  until  the  said  action  of  Synod  be 
revoked,  or  until  further  light  be  obtained,  asserting:  the  eontinu- 
ance  of  the  members  of  the  Presbytery  with  the   Reformed  Pres- 


(  iv  ) 

byterian  Church,  maintaining  her  organization,  and  endeavoring  to 
develop  and  apply  her  principles  in  their  proper  application  to  the 
age  and  country  in  which  they  live. 

The  Synodical  Commission,  having  by  the  Trustees  in  posses- 
sion, been  refused  admittance  to  the  First  Church,  met  in  the  Fourth 
Church,  on  17th  June,  1868,  and  having  issued  citations,  which 
were  but  once  served  upon  Dr.  Wylie,  Messrs.  Grant  and  Chambers 
of  the  Session,  and  the  Trustees  in  possession,  and  upon  no  other 
corporators,  they  heard  the  testimony  of  one  witness,  Mr.  Alex. 
Kerr,  to  the  effect  that  the  Reformed  Presbytery  of  Philadelphia 
had  suspended  its  relations  to  the  General  Synod,  but,  nevertheless, 
remained  in  the  Reformed  Presbyterian  Church,  and  they  then 
adopted  a  minute,  stating  that  the  Presbytery  had  seceded  from 
the  control  of  Synod,  and  had  placed  itself  beyond  the  jurisdiction 
of  Synod  and  of  the  Commission,  and,  therefore,  declaring  "  Dr. 
McMurray  and  R.  Guy,  Ruling  Elders,  with  the  officers  and  mem- 
bers, whose  names  appear  on  the  various  papers  submitted  to  Synod 
at  its  late  meeting,  and  by  Synod  referred  to  this  Commission,  to- 
gether with  such  others  as  may  adhere  to  them,  to  be  the  First 
Reformed  Presbyterian  Congregation  of  Philadelphia,  and  as  such 
entitled  to  all  the  rights  and  immunities  appertaining  thereto.'' 

Shortly  after  that,  and  before  the  1st  July,  1868,  Messrs.  Mc- 
Murray, Guy,  Gordon,  Young,  Biggerstaff,  Taylor,  Stewart  and 
Fletcher,  and  about  seven  pew-holders,  who  were  not  church-mem- 
bers, ami  about  272  members  of  the  said  congregation  ceased  to 
attend  on  the  services  of  the  church,  or  to  occupy  their  pews  in  the 
church  building.  Since  that  time  they  have  held  services  first  in 
the  old  Horticultural  Hall,  and  afterwards  in  the  new  Horticultural 
Hall.  Four  hundred  and  thirty-one  church-members,  and  27  pew- 
holders,  who  were  not  church-members,  remained  in  possession  of 
the  church. 

Since  then,  both  parties  have  attempted  to  keep  up  the  regular 
corporate  succession,  the  Defendants'  party  on  the  first  Monday  of 
every  year  electing  their  Trustees  in  the  church,  and  the  Relators' 
party  electing  theirs  in  Horticultural  Hall. 

On  the  17th  May,  1809,  the  Reformed  Presbytery  of  Philadel- 
phia, adopted  a  memorial  for  presentation  to  Synod,  explaining 
their  action  of  12th  May,  1868,  reasserting  their   membership  in 


(  v) 

the  Reformed  Presbyterian  Church,  transmitting  to  Synod  certified 
copies  of  their  action  of  12th  June,  1868,  and  of  this  Memorial, 
and  appointing  James  Smyth,  Esq.,  Commissioner,  to  present  the 
same  to  Synod. 

The  General  Synod  assembled  in  annual  meeting  at  Cedarville, 
Ohio,  on  the  19th  May,  1869.  On  the  20th  May,  Mr.  Smyth  pre- 
sented the  memorial  from  the  Philadelphia  Reformed  Presbytery, 
which,  together  with  its  accompanying  documents,  was  read  to  the 
Synod.  On  the  same  day,  but  subsequently  to  .the  reading  of  the 
documents  from  the  Presbytery,  the  Synod  adopted  a  series  of 
preambles  and  resolutions,  reciting  the  action  of  the  commission, 
and  ratifying,  approving,  and  adopting  it  as  the  action  of  General 
Synod. 

On  the  23d  October,  1869,  Hon.  Win.  Strong  and  J.  Sergeant 
Price,  Esq.,  for  the  Relators,  filed  the  "  suggestion,"  Post,  p.  15, 
upon  which  a  writ  of  quo  warranto  was  issued  against  the  Defend- 
ants named  in  the  suggestion,  returnable  the  first  Monday  of  Jan- 
uary, 1870.  On  the  return  day  Hon.  Walter  H.  Lowrie,  Hon.  Wm. 
A.  Porter,  and  C.  S.  Patterson,  Esq.,  for  the  Defendants,  obtained 
a  rule  upon  the  Relators,  to  show  cause  why  the  writ  should  not 
be  quashed.  The  motion  was  argued  on  affidavits,  28th  March, 
1870,  before  Read,  Agnew,  and  Sharswood,  JJ.,  by  Messrs. 
Lowrie  and  Patterson  for  the  motion,  and  by  Hon.  Frederick  Car- 
roll Brewster,  Attorney-General  of  Pennsylvania,  and  Mr.  J.  S. 
Price,  contra. 

For  the  motion  it  was  argued  : 

1.  The  writ  of  quo  tvarranto  is  issuable,  not  of  right,  but  only  in 
the  discretion  of  the  court. 

5  Bac.  Ab.  184  {Tit,  Information.) 
Commonwealth  vs.  Murray,  11  8.  $  R.  73. 
"  vs.  Reigart,  14  id.  214. 

"  vs.  Arrison,  15  id.  127. 

vs.  Jones,  2  J.,  365. 
vs.  Cluley,  6  P.  F.  Sm.  270. 

2.  The  practice  formerly  was,  to  issue  the  writ  only  after  rule 
upon  defendants,  to  show  cause  why  writ  should  not  issue  had  been 
made  absolute. 


(iv  ) 

byterian  Church,  maintaining  her  organization,  and  endeavoring  to 
develop  and  apply  her  principles  in  their  proper  application  to  the 
age  and  country  in  which  they  live. 

The  Synodical  Commission,  having  by  the  Trustees  in  posses- 
sion, been  refused  admittance  to  the  First  Church,  met  in  the  Fourth 
Church,  on  17th  June,  1868,  and  having  issued  citations,  which 
were  but  once  served  upon  Dr.  Wylie,  Messrs.  Grant  and  Chambers 
of  the  Session,  and  the  Trustees  in  possession,  and  upon  no  other 
corporators,  they  heard  the  testimony  of  one  witness,  Mr.  Alex. 
Kerr,  to  the  effect  that  the  Reformed  Presbytery  of  Philadelphia 
had  suspended  its  relations  to  the  General  Synod,  but,  nevertheless, 
remained  in  the  Reformed  Presbyterian  Church,  and  they  then 
adopted  a  minute,  stating  that  the  Presbytery  had  seceded  from 
the  control  of  Synod,  and  had  placed  itself  beyond  the  jurisdiction 
of  Synod  and  of  the  Commission,  and,  therefore,  declaring  "  Dr. 
McMurray  and  R.  Guy,  Ruling  Elders,  with  the  officei's  and  mem- 
bers, whose  names  appear  on  the  various  papers  submitted  to  Synod 
at  its  late  meeting,  and  by  Synod  referred  to  this  Commission,  to- 
gether with  such  others  as  may  adhere  to  them,  to  be  the  First 
Reformed  Presbyterian  Congregation  of  Philadelphia,  and  as  such 
entitled  to  all  the  rights  and  immunities  appertaining  thereto." 

Shortly  after  that,  and  before  the  1st  July,  18b'8,  Messrs.  Mc- 
Murray, Guy,  Gordon,  Young,  Biggerstaff,  Taylor,  Stewart  and 
Fletcher,  and  about  seven  pew-holders,  who  were  not  church-mem- 
bers, and  about  272  members  of  the  said  congregation  ceased  to 
attend  on  the  services  of  the  church,  or  to  occupy  their  pews  in  the 
church  building.  Since  that  time  they  have  held  services  first  in 
the  old  Horticultural  Hall,  and  afterwards  in  the  new  Horticultural 
Hall.  Four  hundred  and  thirty-one  church-members,  and  27  pew- 
holders,  who  were  not  church-members,  remained  in  possession  of 
the  church. 

Since  then,  both  parties  have  attempted  to  keep  up  the  regular 
corporate  succession,  the  Defendants'  party  on  the  first  Monday  of 
every  year  electing  their  Trustees  in  the  church,  and  the  Relators' 
party  electing  theirs  in  Horticultural  Hall. 

On  the  17th  May,  1869,  the  Reformed  Presbytery  of  Philadel- 
phia, adopted  a  memorial  for  presentation  to  Synod,  explaining 
their  action  of  12th  May,  1868,  reasserting  their  membership  in 


(  v) 

the  Reformed  Presbyterian  Church,  transmitting  to  Synod  certified 
copies  of  their  action  of  12th  June,  1868,  and  of  this  Memorial, 
and  appointing  James  Smyth,  Esq.,  Commissioner,  to  present  the 
same  to  Synod. 

The  General  Synod  assembled  in  annual  meeting  at  Cedarville, 
Ohio,  on  the  19th  May,  1809.  On  the  20th  May,  Mr.  Smyth  pre- 
sented the  memorial  from  the  Philadelphia  Reformed  Presbytery, 
which,  together  with  its  accompanying  documents,  was  read  to  the 
Synod.  On  the  same  day,  but  subsequently  to  .the  reading  of  the 
documents  from  the  Presbytery,  the  Synod  adopted  a  series  of 
preambles  and  resolutions,  reciting  the  action  of  the  commission,  , 
and  ratifying,  approving,  and  adopting  it  as  the  action  of  General 
Synod. 

On  the  23d  October,  1869,  Hon.  Win.  Strong  and  J.  Sergeant 
Price,  Esq.,  for  the  Relators,  filed  the  "  suggestion,"  Post,  p.  15, 
upon  which  a  writ  of  quo  warranto  was  issued  against  the  Defend- 
ants named  in  the  suggestion,  returnable  the  first  Monday  of  Jan- 
uary, 1870.  On  the  return  day  Hon.  Walter  H.  Lowrie,  Hon.  Wm. 
A.  Porter,  and  C.  S.  Patterson,  Esq.,  for  the  Defendants,  obtained 
a  rule  upon  the  Relators,  to  show  cause  why  the  writ  should  not 
be  quashed.  The  motion  was  argued  on  affidavits,  28th  March, 
1870,  before  Read,  Agnew,  and  Sharswood,  J.J.,  by  Messrs. 
Lowrie  and  Patterson  for  the  motion,  and  by  Hon.  Frederick  Car- 
roll Brewster,  Attorney-General  of  Pennsylvania,  and  Mr.  J.  S. 
Price,  contra. 

For  the  motion  it  was  argued  : 

1.  The  writ  of  quo  warranto  is  issuable,  not  of  right,  but  only  in 
the  discretion  of  the  court. 

5  Bae.  Ab.  184  (T.t,  Information.) 
Commonwealth  vs.  Murray,  11  S.  $•  R.  73. 

"  vs.  Reigart,  14  id.  214. 

"  vs.  Arrison,  15  id.  127. 

"  vs.  Jones,  2  J.,  365. 

"  vs.  Cluleij,  6  P.  F.  Sm.  270. 

2.  The  practice  formerly  was,  to  issue  the  writ  only  after  rule 
upon  defendants,  to  show  cause  why  writ  should  not  issue  had  been 
made  absolute. 


(   vi  ) 

Jones   Case,  2  J.  365. 

3.  The  practice  now  is,  to  issue  the  writ  upon  special  allocatur, 
but  to  allow  the  defendant  his  preliminary  hearing  upon  a  motion 
to  quash. 

Commonwealth  vs.  Farmers'  Batik,  8  II.  415. 

Woodward,  J.,  p.  420.  "  All  analogy  and  principle,  show  that 
the  party  respondent,  must  have  a  hearing  before  he  is  put  to  an- 
swer. .This  we  allow  him  in  a  motion  to  quash  the  writ."  "So 
that  the  respondent  is  secure  of  his  preliminary  hearing,  it  matters 
little  whether  it  be  on  a  rule  to  show  cause,  or  the  less  cumbrous 
motion  to  quash." 

Commonwealth  vs.  McGutcheon,  2  Pars.  205. 
vs.  Cluley,  (J  P.  F.  Sm.  270. 

Strong,  J.,  p.  272.  "The  issue  of  the  writ  does  not  end  the 
discretion  of  the  court." 

4.  Upon  rule  to  show  cause,  or  motion  to  quash,  where  the  ma- 
terial facts  are  not  in  dispute,  the  Court  will  examine  into  the 
merits  sufficiently  to  satisfy  themselves,  that  the  relators  are  en- 
titled to  sue  out  the  writ,  and  that  there  is  a  prima  facie  case 
against  the  defendant. 

A.  Cases  in  which  the  Court  held,  that  a  prima  facie  case  was 
made  out  against  the  defendants,  and,  therefore,  made  the  rule  for 
the  writ  absolute,  or  discharged  the  rule  to  quash. 

Republica  vs.  Wray,  3  Pall.,  490. 
Commonwealth  vs.  Pouglas,  1  Finn,  77. 

"  vs.  Browne,  1  S.  £  R.,  382. 

"  vs.  Meeser,  8  Wr.  341. 

"  vs.  McCutcheon,  2  Pars.  205. 

"  vs.  Commercial  Bank,  4  C.  383-391. 

B.  Cases  in  which  the  rule  for  the  writ  was  discharged,  or  the 
writ  quashed. 

a.  Because  the  relator  was  not  entitled  to  sue. 
Commonwealth  vs.  Burr  ell,  7  B.  34. 

"  vs.  Farmers'  Bank,  8  Bar.  415. 

Same  vs.  Same,  2  Gr.  392. 

vs.  R.  R.  Co.,  8  Bar.  518. 
"  vs.  Cluley,  6  P.  F.  Sm.  270. 

b.  Because  no  prima  facie  case  was  made  out  against  defendant. 


(  vii  ) 

Saving  Institution  Case,  1  Wh.  46. 

Commonwealth  vs.  McCloskey,  2  B.  369. 

In  this  case  there  were  three  defendants,  and  it  was  held  that  no 
'prima  facie  case  was  made  out  against  two  of  them,  but  was  against 
the  third.  The  Court,  therefore,  made  the  rule  absolute  as  to  the 
third,  but  discharged  it  as  to  the  other  two. 

Commonwealth  vs.  Jones,  2  J".  365.  The  defendant  was  Mayor 
of  Philadelphia,  and  the  writ  was  quashed  on  three  grounds.  1. 
That  a  private  relator  cannot  sue  out  writ  to  question  title  to  mu- 
nicipal office.  2.  Relator's  motives  were  bad.  3.  No  case  against 
defendant  was  made  out. 

C.  That  the  Court  will  on  this  motion  give  the  defendants  every 
advantage  they  would  have  had  on  the  argument  of  a  rule  to  show 
cause  why  the  writ  should  not  issue,  and  will  quash  the  writ,  unless 
the  Relators  satisfy  the  Court  of  their  right  to  sue  out  the  writ, 
and  make  out,  on  the  facts  in  proof,  a  prima  facie  case  of  usurpa- 
tion on  the  part  of  the  defendant. 

5.  That  there  are  no  material  facts  in  dispute,  and  that  the  De- 
fendants are  clearly  entitled  in  point  of  law. 

Against  the  motion  it  was  argued : 

1.  That  there  are  facts  in  dispute,  and  the  case  must,  therefore, 
go  to  a  jury. 

2.  That  the  Court  will  not  on  motion  quash  an  information. 
Cole  on  Crim.  Inform.,  70,  242,  and  other  authorities. 

3.  That  this  is  a  proper  case  for  the  issuing  of  the  writ. 

On  10th  March,  1870,  Mr.  Justice  Read  delivered  the  opinion 
of  the  Court,  holding  that  the  Court  would  quash  a  writ  of  quo 
ivarranto,  only  for  "  some  defect  in  the  suggestion  itself,  and  not 
for  any  matter  outside  of  it,''  and,  therefore,  expressing  no  opinion 
whatever  on  the  merits.     (  Vide  14  P.  F.  Sm.  339.) 

On  the  26th  March,  1870,  the  Court,  upon  the  Relators'  peti- 
tion, under  the  Act  of  13th  April,  1840,  §  12,  (Purd.  Dig.  834, 
§  18),  amended  the  record  by  substituting  Messrs.  Williams, 
Johnston,  Walker,  Smyth,  Porter,  Pettigrew,  and  Gr.  H 
Stuart,  Jr.,  as  Defendants,  claiming  to  have  been  elected  on  the 
first  Monday  of  January,  1870.  On  5th  July,  1870,  the  Court 
further  amended  the  record  by  substituting  2d  March,  1870,  as  the 
date  of  the  defendant  Stuart's  intrusion  into  the  office  of  a  Trustee. 


(  viii  ) 

The  pleas  and  replications  having  been  filed,  the  cause  came  on 
for  .trial,  Thursday,  9th  March,  1871,  at  Nisi  Prius,  before  Mr. 
Justice  Williams  and  a  jury,  the  Attorney-General  of  Pennsylva- 
nia and  Mr.  J.  S.  Price  appearing  for  the  Relators,  and  Messrs. 
Porter  and  C.  S.  Patterson  for  the  Defendants.  The  Defendants' 
counsel  moved  for  the  right  to  begin  and  conclude,  but  Mr.  Justice 
Williams  held  that  the  third  plea  threw  the  burden  of  proof  on  the* 
Relators.  The  Relators  then  opened  their  case.  On  Friday,  17th 
March,  the  seventh  day  of  the  trial,  the  Defendants'  case  was 
opened.  On  Thursday,  30th  March,  the  fourteenth  day,  the  Rela- 
tors opened  in  rebuttal.  The  3d,  4th,  and  5th  of  April. were  con- 
sumed by  the  arguments  of  counsel.  On  the  6th  of  April  Mr. 
Justice  Williams  charged  the  jury,  and  on  the  7th  of  April,  the 
twentieth  day  of  the  trial,  they  were  discharged,  having  failed  to 
agree. 

The  material  facts  as  developed  at  the  trial  have  been  stated. 
As  to  none  of  those  facts  was  there  any  conflicting  evidence,  ex- 
cept as  to  the  passage  of  the  resolution  to  refer  to  arbitrators  the 
decision  of  the  validity  of  the  election  of  1808.  The  pleadings 
show  that  the  action  was  brought  to  determine  whether  the  Rela- 
tors, elected  in  January,  1870,  by  the  congregation  in  Horticul- 
tural Hall,  or  the  Defendants,  elected  on  the  same  day  by  the  con- 
gregation in  possession  of  the  Church,  were  the  Trustees  of  the 
corporation ;  or,  in  other  words,  whether  the  Hall  party  or  the 
Church  party  constituted  the  corporation. 

It  will  be  observed  in  Mr.  Justice  Williams'  charge,  that  he 
hinged  the  case  upon  the  determination  of  a  question  of  fact,  as  to 
which  there  was  no  conflict  of  evidence,  viz.:  whether  the  Relators' 
party  in  1868  were  "excluded  from  the  church,  and  compelled 
"to  leave  'by  the  defendants'  "  (post.  p.  108).  That  their  with- 
drawal was  voluntary  was  an  undisputed  fact  in  the  cause.  If, 
therefore,  the  jury  had  been  content  to  accept  the  Judge's  view  of 
the  law,  and  to  render  a  verdict  according  to  the  evidence,  they 
would  have  found  for  the  defendants.  The  majority  of  them,  how- 
ever, were  not  so  content;  for  when  they  were  discharged,  they 
stood,  eleven  for  the  Relators,  and  one  for  the  Defendants. 

The  result  of  the  litigation  up  to  this  point  is  that  the  Defend- 
ants and  their  partisans  remain  in  undisturbed  possession  of  the 
church  buildings  and  property. 


PLEADINGS, 

In  the    Supreme   Court  for  the   Eastern 
District  of  Pennsylvania. 


s.  c. 


No.  109. 


Commonwealth  of  Pennsylvania,  at  the  relation  of 
George    Gordon,    John   Bigger  staff,    Ephraim 
Young,  Robert  C.  Taylor,  James  Steivart,  Rob- 
ert Fletcher,  and  James  Boyd,  i  ™   _.  q_~ 
vs. 

James  Graham,  William  Ray,  Tlwmas  Johnston, 
Thomas  M.  Kerr,  Charles  Williams,  Abram 
Walker,  and  James  Smyth. 

RELATORS'  SUGGESTION   FOR  QUO  WARRANTO. 

City  and  County  of  Philadelphia,  ss. 

George  Gordon,  John  Biggerstaff,  Ephraim  Young,  Robert  C. 
Taylor,  James  Stewart,  Robert  Fletcher,  and  James  Boyd,  who 
sue  for  the  Commonwealth  in  this  behalf,  come  here  into  court 
and  for  the  said  Commonwealth,  give  the  court  here  to  understand 
and  be  informed  that  James  Graham,  William  Ray,  Thomas  John- 
ston, Thomas  M.  Kerr,  Charles  Williams,  Abram  Walker,  and 
James  Smyth,  all  of  the  City  and  County  of  Philadelphia,  since 
the  fourth  day  of  January  in^the  year  of  our  Lord,  one  thousand 
eight  hundred  and  sixty-nine,  have  exercised,  and  do  still  exer- 
cise, within  said  City  and  County  without  lawful  authority,  the 
franchises  and  privileges  of  Board  of  Trustees  of  "  The  First  Re- 
formed Presbyterian  Congregation  in  the  City  of  Philadelphia." 
That  the  said  "  The  First  Reformed  Presbyterian  Congregation  in 
the  City  of  Philadelphia,"  is  a  corporation  (duly  organized  under 
an  act  of  the  General  Assembly  of  the  Commonwealth  of  Penn- 
sylvania,  approved   the   sixth   day  of  April,  in   the   year   of  our 

(  ix  ) 


SSTITUTI 
FIRST  RE1  ED  PRESBYTERIAN  (    NGREGATION 


-      •  ^ 

-  .  -----  - 

Peon- 

.  - 

•  -    '         '  ... 

- 

:    I 

-..  -  -  ■  -       "         •     : 

■ 

I     - 

:  :  - 

- 
- 

■      - 

"  ,  -  1    1_-    z ■-.-."-" 


-  -  -     .    •--  -   —      •  -    ,   - 

-   .  .  -  .-  al! 

-  -  -  .  b       .  ---  -  - 


(xi) 

every  matter  therein  to  do  as  folly  and  effectually  as  any  person 
or  f  s,  as  bodies  politic  within  this   Commonwealth,  may  or 

can  do  ;  and  shall  be  authorized  to  make  Rules  and  By-Lai  .  and 
do  evervthing  necessary  for  the  good  government  and  management 
of  the  affairs  of  this  Corporation.  Provided  a.  iys,  that  such 
nances  be  not  repugnant  to  the  laws  of  the  Unite  I  States,  or 
of  this  Commonwealth  or  this  instrument. 

Art.  3.  That  the  said  Congregation,  by  the  name,  style  and 
title  aforesaid,  shall  be  able  and  capable  in  law,  according  to  the 
terms  and  conditions  of  this  Instrument,  to  take,  receive  and  hold 
all  manner  of  lands,  tenements,  rents,  annuities,  franchises  and 
hereditaments,  and  any  sum  or  snms  of  money,  and  any  manner  of 
goods  and  chattels  which  may  now  be  in  its  r  -  -  sa  n,  or  may  be 
hereafter  acquired  by  bequest  or  donation,  to  be  disposed  of  ac- 
cording to  the  Articles  and  Conditions  of  this  Instrument,  and 
the  Br-LiTTs  of  this  Corporation,  or  the  will  of  the  donors.  Pro- 
vided  tlways,  that  the  clear  yearly  value  or  income  of  the  Estate, 
::   -■  ....-;     ::    -•  .• . .   -       :    ■  :    •    .  ~~  -—     :.     . :'  :"_e 

Congregation,  shall  not  exceed  Five  Hundred  Pounds. 

Abt.  4.  That  there  shall  be  a  Board  of  Trustees,  which  shall 
consist  of  seven  members,  who  shall  be  recognized  by  the  Session 
of  this  Congregation  as  being  in  full  communion  with  this  Church. 

Art.  5.  That  there  shall  be  an  annual  election  for  the  members 
of  the  Board  of  Trustees  on  the  first  Monday  of  every  ur,  of 
which  notice  shall  be  given  two  weeks  previous  from  the  pulpit. 
The  election  shall  be  by  ballot,  in  the  Church. 

Art.  6.  That  the  persons  capable  of  electing  shall  be  all  who 
are  in  full  communion  with  the,  Congregation,  as  well  as  all  pew- 
holders  though  not  in  full  communion. 

A ?.i.  7.  That   in   case  of  a  vacancy  in  the   Board,  by  death, 
^nation,  removal   or   otherwise,  the   President   of  the   Board 
shall  call,  within  two  weeks,    .      jngregational  meeting,  givir. 

:  one  week's  notice,  to  fill  such  vacancy   until  the  next  elec- 
tion. 

Art.  B.  That  the  power  of  the  Board  of  Trustees  shall  extend 
only  to  the  temporalities  of  the  Church,  in  taking  care  of  the 
property  of  the  Congregation,    and  without  the  authority  of  a 


(  xii  ) 

majority  of  the  Congregation  they  shall  not  expend  a  sum  exceed- 
ing One  Hundred  Dollars. 

Art.  9.  That  the  Trustees,  four  of  whom  shall  form  a  quorum, 
shall  meet  on  the  first  Monday  after  their  election,  and  afterwards 
as  business  may  require.  They  shall  choose  from  among  them- 
selves a  President  and  Treasurer,  and  from  others,  if  they  think 
proper,  a  Secretary  and  Sexton. 

Art.  10.  That  the  Trustees  shall  have  power  to  make  By-Laws 
for  their  own  regulation.  Provided  they  are  proposed  eight  days 
before  enacted,  and  not  contrary  to  this  Instrument. 

Art.  11.  That  the  Trustees  shall  lay  before  the  Congregation, 
at  the  annual  election,  a  full  account  of  all  their  transactions. 

Art.  12.  That  none  of  the  real  estate  of  the  Congregation 
shall  be  alienated  without  authority  from  the  Congregation. 

Art.  13.  That  meetings  of  the  Trustees  shall  be  called  by  the 
President,  of  his  own  accord,  or  at  the  desire  of  any  two  members, 
due  notice  being  given. 

Art.  14.  That  when  a  Congregational  meeting  shall  be  called, 
three  days  at  least  must  intervene  between  the  notification  and  the 
meeting. 

Art.  15.  That  Congregational  meetings  may  be  called  by  the 
Trustees,  or  at  the  request  of  any  six  pew-holders.  The  voters  at 
the  Congregational  meetings  shall  be  such  as  are  entitled  to  vote 
at  the  election  of  Trustees. 

Art.  16.  That  the  salary  of  the  Pastor  shall  be  fixed  by  a 
majority  of  the  Congregation. 

(Signed)        James  R.  Willson, 
Francis  S.  Beattie, 
Alexander  Henry, 
Wm.  Henry, 
Alexander  Cowan, 
Samuel  Willson, 
Sam'l  W.  Crawford. 

Approved  by  Attorney-General  and  Justice  of  Supreme  Court, 

January  22,  1816. 

Secretary   of   State  directed    by  Governor    Snyder    to    enroll, 

March  19,  1816. 


(  xiii ) 

Enrolled  in    Secretary's   office    at    Harrisburg,  on    March    19, 

"  1816,  in  book  No.  2,  page  152, 
"  containing  a  record  of  Acts 
"  incorporating  Sundry  Religi- 
"  ous,  Charitable  and  Literary 
"  Societies." 


ADDITION  TO  THE  CONSTITUTION 

OF  THE 

FIRST  REFORMED  PRESBYTERIAN   CONGREGATION, 

IN  THE 

CITY  OF  PHILADELPHIA. 


Whereas,  By  the  Constitution  of  the  above-named  Corporation 
(to  which  this  is  a  supplement),  authority  to  mortgage  any  real 
estate,  of  •which  the  "aid  Corporation  might  become  seized,  has 
not  been  explicitly  given  :  And  whereas,  the  said  Corporation  is 
desirous  of  procuring  a  sum  of  money  for  the  purpose  of  paying 
off  the  principal  of  a  certain  rent-charge,  now  chargeable  on  a 
certain  lot  of  ground  whereon  they  have  erected  a  building  for 
public  worship,  which  rent-charge  will  become  irredeemable  after 
the  twenty-fourth  day  of  January,  1829  :  And  whereas,  certain 
individuals  have  loaned  to  the  said  Congregation  sums  of  money, 
and  have  made  themselves  personally  responsible  for  certain  loans 
made  by  otbers  to  the  said  Congregation,  who  are  desirous  to 
secure  to  such  individuals  the  re-payment  of  the  loans,  and  to 
indemnify  them  from  the  responsibilities  aforesaid :  The  said  Cor- 
poration hereby  declare  that  the  following  Article  shall  be  held 
and  taken  for  and  as  a  part  of  their  original  Constitution. 

Art.  17.  The  President  and  Secretary  shall  have  authority 
(the  approbation  of  the  Board  of  Trustees  and  the  consent  of  a 
majority  of  the  Congregation  having  been  first  obtained),  to  mort- 
gage the  lot  situated  at  the  south-east  corner  of  Eleventh  and 


(  xiv ) 

Marble  Streets,  in  the  city  of  Philadelphia,  with  the  building  or 
buildings  thereon  erected,  for  the  purpose  of  obtaining  funds  to 
pay  off  the  principal  of  the  ground-rent  now  chargeable  on  said 
premises,  and  shall,  under  their  hands  and  the  corporate  seal  of 
the  Congregation,  execute  a  mortgage  or  mortgages  in  fee  simple 
to  the  lender  or  lenders  of  such  sum  or  sums  of  money  as  shall  be 
necessary  for  thit  purpose ;  and  may,  under  their  hands  and  the 
corporate  seal  as  aforesaid,  execute  to  such  individuals  as  have 
loaned  or  may  loan  to  the  said  Corporation,  or  as  have  become 
responsible  for  loans  made  or  to  be  made  to  the  said  Corporation, 
such  mortgage  or  mortgages  of  any  real  estate  of  which  the  said 
Congregation  is  or  may  become  seized,  as  shall  be  necessary  to 
secure  or  indemnify  the  said  individuals  for  the  loans  or  responsi- 
bilities aforesaid. 


At  a  meeting  of  the  Members  and  Trustees  of  the  First  Re- 
formed Presbyterian  Congregation  in  the  City  of  Philadelphia, 
convened  after  due  public  notice  on  the  twentieth  day  of  Novem- 
ber, A.  D.  1828,  it  was  unanimously 

Resolved,  That  the  within  seventeenth  Article  be  adopted  and 
added  to  the  original  Constitution  of  the  Congregation,  which  was 
established  in  conformity  with  the  Act  of  Assembly  of  the  State 
of  Pennsylvania  of  6th  April,  1791,  and  enrolled  in  the  office  of 
the  Secretary  of  the  Commonwealth  on  the  19th  day  of  March, 
1816,  as  an  alteration  and  amendment  of  the  same. 

In  testimony  whereof,  the  President  and  Secretary  of  said  Cor- 
poration have  hereunto  set  their  hands  and  affixed  the  corporate 
seal. 


{.,} 


(Signed)     William  Henry,  President, 
Attest  (Signed)     William  H.  Scott,  Secretary. 


Approved  by  Attorney- General,  Nov.  22,  1828. 
Approved  by  Justices  of  Supreme  Court,  Dec.  17,  1828. 


(  xv) 

Certificate  of  Prothonotary  of  Supreme  Court  that  supplement 

was  presented  to  Supreme 
Court  Judges,  was  allowed 
by  them,  and  was  so  cer- 
tified, Dec.  17,  1828. 

Secretary  of  State   directed  by  Governor   Schultze   to  enroll, 

Dec.  22,  1828. 

Enrolled  in  Secretary's  office  at  Harrisburg,  on   December  22, 

1828,  in  Charter  Book, 
No.  4,  containing  a  record 
of  Acts  incorporating  sun- 
dry Literary,  Charitable 
and  Religious  institutions. 

That  at  the  regular  annual  election  for  the  members  of  the 
Board  of  Trustees  of  said  Congregation,  held  in  accordance  with 
the  terms  of  the  Charter,  on  the  first  Monday  of  the  year,  viz.: 
on  the  fourth  day  of  January,  A.  D.,  1869,  the  said  George  Gor- 
don, John  Biggerstaff,  Ephraim  Young,  Robert  C.  Taylor,  James 
Stewart,  Robert  Fletcher,  and  James  Boyd  were  in  due  and  regu- 
lar form  of  Law  elected  as  a  Board  of  Trustees  of  said  Congrega- 
tion, and  have  been  recognized  by  the  Session  of  the  said  Congre- 
gation as  being  in  full  communion  with  the  said  Church.  But 
notwithstanding  the  premises  and  the  said  election,  they,  the  said 
James  Graham,  William  Ray,  Thomas  Johnston,  Thomas  M.  Kerr, 
Charles  Williams,  Abram  Walker  and  James  Smyth,  have,  during 
all  the  time  since  the  said  the  fourth  day  of  January,  A.  D.  1869, 
used  and  do  still  use  the  franchises,  offices,  privileges  and  liberties 
of  a  Board  of  Trustees  of  the  said,  "  The  First  Reformed  Presby- 
terian Congregation  in  the  City  of  Philadelphia,"  and  during  the 
said  time  have  usurped  and  do  usurp  upon  the  Commonwealth 
therein,  to  the  great  damage  and  prejudice  of  the  constitution  and 
laws  thereof.  Wherefore  the  said  relators  for  the  said  Common- 
wealth do  make  suggestion  and  complaint  of  the  premises,  and 
pray  the  due  process  of  law  against  the  said  James  Graham,  Wil- 
liam Ray,  Thomas  Johnston,  Thomas  M.  Kerr,  Charles  Williams, 
Abram  Walker,  and  James  Smyth,  in  this  behalf,  to  be  made  to 
answer  to  the  said  Commonwealth  by  what  warrant  they  claim  to 


(  xvi  ) 

have,  use  and  enjoy  the  franchises,  offices,  privileges  and  liberties 
aforesaid.  George  Gordon, 

Ephraim  Young, 
John  Biggerstaff, 
James  Stewart, 
Robert  C.  Taylor, 
Robert  Fletcher, 
James  Boyd. 

George  Gordon,  being  duly  sworn,  deposes  and  says  that  the 
statements  in  the  foregoing  suggestions  are  true  as  he  firmly 
believes. 

GEORGE  GORDON. 

Sworn  and  subscribed  before  me  this  first  day  of  October, 
A.  D.,  1869. 

THOS.  DALLAS,  Alderman. 
J.  Sergeant  Price, 
William  Strong, 

of  Counsel. 


Defendants'  Pleas. 

And  now  this  31st  day  of  October,  A.D.,  1870,  come  Charles 
Williams,  Thomas  Johnston,  James  Smyth,  Abram  Walker,  Wil- 
liam G.  Porter,  and  John  Pettigrew,  by  Chris.  Stuart  Patterson, 
their  attorney,  and  protesting  that  the  suggestion  and  petition  filed 
in  this  case  and  amended  by  the  order  of  Court,  made  on  the  26th 
day  of  March,  1870,  directing  that  George  Gordon,  John  Bigger- 
staff,  Ephraim  Young,  Robert  C.  Taylor,  James  Stewart,  Robert 
Fletcher,  and  James  Boyd,  as  Relators,  and  the  Defendants  above- 
named,  with  George  H.  Stuart,  Jr.,  as  Defendants,  be  substituted 
of  record  in  this  case,  are  altogether  insufficient  in  law,  and  that 
they  need  not  according  to  the  law  of  the  land  to  make  answer 
thereunto,  nevertheless,  for  a  plea  in  this  behalf  they  say  that  the 
said  Commonwealth  ought  not  to  implead  them  by  reason  of  the 
premises  in  the  said  suggestion  and  petition  set  forth,  because  they 
say  that  true  it  is  that  the  said  The  First  Reformed  Presbyterian 
Congregation  in  the  City  of  Philadelphia  is  a  corporation  duly  or- 
ganized under  an  Act  of  the  General  Assembly  of  the  Common- 
wealth of  Pennsylvania,  approved  on  the  6th  April,  A.D.  1791, 
and  that  the  charter  of  the  said  corporation  is  as  the  same  is  set 
forth  in  the  said  suggestion. 

And  these  defendants  further  say  that  they  were  duly  elected 
and  chosen  Trustees  of  the  said  corporation  in  accordance  with  the 
said  charter  thereof,  in  manner  following,  that  is  to  say  the  annual 
meeting  of  the  said  corporation,  for  the  election  of  the  members  of 
the  Board  of  Trustees  thereof,  was  held  in  accordance  with  the 
said  charter  on  the  first  Monday  of  January  in  the  year  A.D.  1870 ; 
to  wit,  on  the  3d  day  of  January,  A.D.  1870,  in  the  church  owned, 
occupied  and  used  by  the  said  corporation,  to  wit,  the  church  build- 
ing situated  on  the  East  side  of  Broad  Street,  South  of  Spruce 
Street  in  the  said  City  of  Philadelphia,  of  which  meeting  and  elec- 

(  xvii  ) 


(  xviii  ) 

tion,  and  of  the  time  and  place  of  holding  the  same,  notice  had 
been  given,  two  weeks  previously  from  the  pulpit,  in  the  church 
aforesaid.  At  the  said  corporate  meeting  an  election  by  ballot  was 
hold  by  the  duly  qualified  corporators  then  and  there  present,  and 
the  said  Charles  Williams,  Thomas  Johnston,  James  Smyth,  Abram 
Walker,  William  G.  Porter  and  John  Pettigrew,  together  with 
Thomas  M.  Kerr,  received  a  majority  of  the  ballots  then  and 
there  cast,  at  the  said  election,  by  the  said  duly  qualified  cor- 
porators then  and  there  present,  and  they,  the  said  defendants, 
and  the  said  Thomas  M.  Kerr,  were  afterwards,  to  wit,  on  the 
said  third  day  of  January,  A.D.  1870,  recognized  by  the  session 
of  the  said  First  Reformed  Presbyterian  Congregation  in  the 
City  of  Philadelphia,  as  being  in  full  communion  with  the  said 
church,  to"  wit  the  said  The  First  Reformed  Presbyterian  Congre- 
gation in  the  City  of  Philadelphia. 

By  virtue  of  which  said  election,  the  said  defendants  became 
lawfully  authorized  and  entitled  with  the  said  Thomas  M.  Kerr  to 
exercise  the  office  of  Trustees  of  the  said  corporation,  and  to  have, 
use  and  enjoy  the  franchises,  liberties  and  privileges  thereunto 
appertaining. 

And  the  said  defendants  further  say  that  on  the  first  Monday 
after  their  election,  to  wit,  on  the  10th  day  of  January,  A.D.  1870, 
they  the  said  defendants  accepted  and  took  upon  themselves  the 
said  offices,  and  met  and  chose  a  President,  a  Treasurer,  a  Secre- 
tary, and  a  Sexton,  and  from  thenceforth  they  have  by  virtue  of 
the  said  election  and  by  that  warrant  exercised,  and  do  still  con- 
tinue to  exercise  in  the  City  of  Philadelphia,  the  said  offices  of 
Trustees  of  the  said  corporation,  and  the  franchises,  liberties  and 
privileges  thereunto  belonging,  as  they  well  might  and  still  may; 
without  this,  that  they,  the  said  defendants,  the  said  offices,  liber- 
ties, franchises  and  privileges  in  the  said  suggestion  and  petition 
mentioned,  or  any  of  them  have  usurped  or  do  usurp  against  the 
said  Commonwealth  in  manner  and  form  as  in  the  said  suggestion 
and  petition  is  above  alleged  against  them,  all  which  they  the  said 
defendants  are  ready  to  verify  and  prove  as  the  Court  shall  award. 
Whereupon  they  pray  judgment,  and  that  the  offices,  franchises, 
liberties  and  privileges  by  them  claimed  in  form  aforesaid  may  be 
allowed  and  adjudged   to    them,  and   that   they  may  be   dismissed 


(   xix   ) 

and  discharged   by  the   Court  of  and  from   the   premises   above 
charged  upon  them. 

2.  And  now  this  31st  day  of  October,  A.D.  1870,  comes  George 
H.  Stuart,  Jr.,  by  Chris.  Stuart  Patterson,  his  attorney,  and  pro- 
testing that  the  suggestion  and  petition  filed  in  this  case  and 
amended  by  the  order  of  Court,  made  on  the  26th  day  of  March, 
1870,  directing  that  George  Gordon,  John  Biggerstaff,  Ephraim 
Young,  Robert  C.  Taylor,  James  Stewart,  Robert  Fletcher,  and 
James  Boyd,  as  Relators,  and  Charles  Williams,  Thomas  Johnston, 
James  Smyth,  Abram  Walker,  William  G.  Porter,  John  Pettigrew, 
and  George  H.  Stuart,  Jr.,  as  Defendants,  be  substituted  of  record 
in  this  case ;  and  as  further  amended  by  the  order  of  Court,  made 
on  the  5th  day  of  July,  1870,  directing  that  the  record  be  amended 
by  inserting  the  date  2d  March,  1870,  instead  of  the  first  Monday 
of  January,  1870,  as  the  time,  at  which  George  IT.  Stuart,  Jr., 
claims  to  have  been  elected  a  Trustee  of  the  said  The  First  Re- 
formed Presbyterian  Congregation  in  the  City  of  Philadelphia  are 
altogether  insufficient  in  law,  and  that  he  need  not  according  to  the 
law  of  the%land  to  make  answer  thereunto,  nevertheless,  for  a  plea 
in  this  behalf,  he  saith,  that  the  said  commonwealth  ought  not  to 
implead  him  by  reason  of  the  premises  in  the  said  suggestion  above 
specified,  because  he  says  that  true  it  is  that  the  said  The  First 
Reformed  Presbyterian  Congregation  in  the  City  of  Philadelphia, 
is  a  corporation  duly  organized  under  an  Act  of  the  General  As- 
sembly of  the  Commonwealth  of  Pennsylvania,  approved  on  the 
6th  day  of  April,  A.D.  1791,  and  that  the  charter  of  the  said  cor- 
poration is  as  in  the  said  suggestion  above  set  forth,  and  this  de- 
fendant further  says,  that  Thomas  M.  Kerr,  one  of  the  Trustees  of 
the  said  corporation,  having  resigned  his  said  office,  heretofore,  to 
wit,  on  the  3d  day  of  January,  A.D.  1870,  the  said  resignation  to 
take  effect  on  the  10th  day  of  February,  A.D.  1870,  and  the  said 
resignation  having  been  duly  accepted  by  the  said  corporation, 
Charles  Williams,  the  President  of  the  Board  of  Trustees  of  the 
said  corporation,  called  within  two  weeks  after  the  t  iking  effect  of 
the  said  resignation  as  aforesaid,  to  wit,  on  the  20th  day  of  Febru- 
ary, A.D.  1870,  a  congregational  meeting  to  beheld  on  the  second 
day  of  March,  A.D.  1870,  to  fill  such  vacancy  until  the  next  elec. 
tion,  of  which  said  meeting  and  of  the  purposes  for  which  the  same 


(   xx   ) 

was  summoned  more  than  one  week's  notice  was  given,  to  wit,  by 
the  reading  on  two  Sabbaths,  to  wit,  on  the  20th  and  27th  days  of 
February,  A.D.  1870,  of  the  said  call  and  notice  therefor  from  the 
pulpit  in  the  church,  to  wit,  the  said  church  situated  on  the  East 
side  of  Broad  Street,  South  of  Spruce  Street  in  the  City  aforesaid, 
and  this  defendant  further  saith  that  a  meeting  of  the  said  corpora- 
tion was  duly  held  in  accordance  with  the  said  call  and  summons, 
in  the  church  aforesaid  on  the  2d  day  of  March,  A.D.  1870,  and 
at  the  said  meeting  an  election  was  held  by  ballot  to  fill  the  said 
vacancy,  in  the  S:ud  office,  and  this  defendant  then  and  there  re- 
ceived a  majority  of  all  the  ballots  cast  by  the  duly  qualified  elec- 
tors, then  and  there  present,  and  afterwards,  to  wit,  on  the  said 
2d  day  of  March,  A.D.  1870,  this  said  defendant  was  recognized 
by  the  session  of  the  said  congregation  as  being  in  full  communion 
with  this  church,  to  wit,  The  First  Reformed  Presbyterian  Con- 
gregation in  the  City  of  Philadelphia,  by  virtue  of  which  said 
election  he  became  lawfully  authorized  and  entitled  (with  the  said 
Charles  Williams,  Thomas  Johnston,  James  Smyth,  Abram 
Walker,  William  G.  Porter,  and  John  Pettigrew),  to  exercise  the 
office  of  a  Trustee  of  the  said  corporation,  and  to  have,  use  and 
enjoy  the  franchises,  liberties  and  privileges  thereunto  appertain- 
ing, and  the  said  defendant  did  thereupon  accept  and  take  upon 
himself  the  said  office,  and  by  virtue  of  the  said  election,  and  by 
that  warrant  has  from  thence  exercised,  and  does  still  exercise  the 
said  office,  in  the  City  aforesaid,  and  claims  to  have,  use  and  enjoy 
the  franchises,  liberties  and  privileges  thereunto  appertaining  as 
he  well  might,  and  still  may;  without  this,  that  he,  the  said  de- 
fendant, the  said  offices,  liberties,  privileges  and  franchises  in  the 
said  suggestion  and  petition  mentioned,  or  any  of  them  has 
usurped  or  does  usurp  against  the  said  Commonwealth,  in  manner 
and  form  as  in  the  said  suggestion  and  petition,  is  above  alleged 
against  him,  all  which  the  said  defendant  is  ready  to  verify  and 
prove  as  the  Court  shall  award.     Whereupon,  &c. 

3.  And  by  the  leave  of  the  Court  for  this  purpose  first  had  and 
obtained,  for  a  further  plea  to  the  suggestion  and  petition  filed  in 
this  case,  as  amended  by  the  order  of  Court,  made  on  the  26th 
day  of  March,  1870,  directing  that  George  Gordon,  John  Bigger- 
staff,  Ephraim  Young,  Robert  C.  Taylor,  James    Stewart,  Robert 


( xxi ) 

Fletcher,  and  James  Boyd,  as  Relators,  and  Charles  Williams, 
Thomas  Johnston,  James  Smyth,  Abram  Walker,  William  G. 
Porter,  John  Pettigrew,  and  George  H.  Stuart,  Jr.,  as  Defendants, 
be  substituted  of  record  in  this  case;  and  as  further  amended  by 
the  order  of  Court,  made  on  the  5th  day  of  July,  1870,  directing 
that  the  record  be  amended,  by  inserting  the  date,  2d  March,  1870, 
instead  of  the  first  Monday  of  January,  1870,  as  the  time,  at  which 
George  H.  Stuart,  Jr.,  claims  to  have  been  elected  a  Trustee  of 
the  First  Reformed  Presbyterian  Congregation  in  the  City 
of  Philadelphia;  the  said  Charles  Williams,  Thomas  Johnston, 
James  Smyth,  Abram  Walker,  William  G.  Porter,  John  Pettigrew, 
and  George  H.  Stuart,  Jr.,  by  their  said  attorney,  say  that  the 
said  Relators  have  not  been,  for  some  time  past,  to  wit,  since  the 
first  day  of  July,  A.D.  1868,  and  are  not  now,  corporators  of  the 
said  corporation,  without  this,  that  the  said  Relators  or  any  of 
them  were,  on  the  first  Monday  of  January,  1870,  to  wit,  on  the 
3d  day  of  January,  A.D.  1870,  or  at  any  other  time  before  or 
since,  in  due  and  regular  form  of  law  elected  Trustees  of  the  cor- 
poration in  manner  and  form  as  in  the  said  suggestion  and  petition 
is  above  alleged.  All  which  matters  and  things  they  the  said  de- 
fendants are  ready  to  verify  and  prove,  as  the  Court  shall  award. 
Whereupon  they  pray  judgment,  and  that  the  offices,  franchises, 
liberties  and  privileges  by  them  claimed  in  form  aforesaid,  may  be 
allowed  and  adjuged  to  them,  and  that  they  may  be  dismissed  and 
discharged  by  the  Court,  of  and  from  the  premises  above  charged 
upon  them. 

CHRIS.  STUART  PATTERSON, 
WILLIAM  A.  PORTER, 
Of  Counsel. 


Relators'   Replications. 

And  the  said  Relators  who  prosecute  for  the  Commonwealth  in 
this  behalf,  having  heard  the  pleas  of  the  said  Charles  Williams, 
Thomas  Johnston,  Abram  Walker,  James  Smyth,  William  G.  Por- 
ter, John  Pettigrew,  and  George  H.  Stuart,  Jr.,  in  manner  and 
form  aforesaid,  above  pleaded  in  bar  to  the  said  suggestion  of  the 
Commonwealth  say,  that  by  reason  of  anything  in  the  first  plea 
alleged,  the  said  Commonwealth  ought  not  to  be  barred  from  having 
the  said  suggestion  and  petition  against  the  said  Charles  Williams, 
Thomas  Johnston,  Abram  Walker,  James  Smyth,  William  G.  Por- 
ter, and  John  Pettigrew,  because,  protesting  the  said  first  plea  and 
the  matter  therein  contained  are  not  sufficient  in  law  to  bar  the 
said  Commonwealth  from  having  the  aforesaid  su^estion  and  pe- 
tition  against  the  said  Charles  Williams,  Thomas  Johnston,  Abram 
Walker,  James  Smyth,  William  G.  Porter,  and  John  Pettigrew, 
to  which  first  plea  in  manner  and  form  above  pleaded,  the  said 
Relators  are  under  no  necessity  nor  in  any  ways  obliged  by  the 
law  of  the  land  to  answer  ;  for  replication,  nevertheless,  the  said 
Relators  say  that  the  said  Charles  Williams,  Thomas  Johnston, 
James  Smyth,  Abram  Walker,  William  G.  Porter,  and  John  Petti- 
grew, together  with  Thomas  M.  Kerr,  did  not,  on  the  first  Monday 
of  January,  A.D.  1S70,  in  the  first  plea  mentioned,  according  to 
the  provisions  of  the  said  Charter  of  the  First  Reformed  Presby- 
terian Congregation  in  the  City  of  Philadelphia,  receive  a  maj  )r- 
ity  of  the  ballots  of  the  duly  qualified  corporators  of  said  congre- 
gation in  the  manner  and  place  and  form  as  in  the  said  first  plea 
alleged,  and  were  not  at  that  time  in  accordance  with  the  said 
Charter  duly  elected  and  chosen  Trustees  of  said  Corporation,  nor 
were  they  at  that  time  in  full  communion  with  said  church,  or  duly 
recognized  by  the  session  of  the  said  "The  First  Reformed  Pres- 
(  xxii  ) 


(  xxiii  ) 

byterian    Congregation"   as   being  in   full    communion   with  said 
church;  and  the  said  Relators  put  themselves  on  the  country,  &c. 

2.  And  the  said  Relators  do  further  say,  that  by  reason  of  any- 
thing in  the  second  plea  alleged,  the  said  Commonwealth  ought  not 
to  be  barred  from  having  the  said  suggestion,  and  petition  against 
the  said  George  H.  Stuart,  Jr.,  because,  protesting  that  the  said 
second  plea,  and  the  matters  therein  contained,  are  not  sufficient 
in  law  to  bar  the  said  Commonwealth  from  having  the  aforesaid 
suggestion  and  petition  against  the  said  George  II.  Stuart,  Jr., 
to  which  second  plea  in  manner  and  form  above  pleaded,  the  said 
Kelators  are  under  no  necessity,  nor  in  anyways  obliged  by  the 
law  of  the  land  to  answer  ;  for  replication,  nevertheless,  the  said 
Relators  say,  that  the  said  Thomas  M.  Kerr,  in  said  second  plea 
mentioned,  was  not,  on  the  3d  clay  of  January,  A.D.  1870,  one  of 
the  Trustees  of  the  said  "The  First  Reformed  Presbyterian  Con- 
gregation in  the  City  of  Philadelphia,"  and  no  resignation  of  his 
office  was  accepted  by  said  corporation.  That  no  congregational 
meeting  of  said  corporation  was  called  by  the  President  of  the 
Board  of  Trustees  of  said  Church,  or  held  at  the  time,  or  in  the 
place,  manner  or  form  as  in  second  plea  mentioned.  That  there 
was  no  election  held  by  ballot  on  the  second  day  of  March,  A.D. 
1870,  to  fill  a  vacancy  in  the  Board  of  Trustees  of  said  Church, 
and  the  said  defendant,  George  H.  Stuart,  Jr.,  did  not  then  and 
there'receive  a  majority  of,  or  any  ballots  cast  by  the  duly  quali- 
fied electors  of  said  corporation,  and  the  said  defendant  was  not 
on  that  day  in  full  communion  with  the  said  Church,  or  recognized 
by  the  session  of  the  said  congregation  as  being  in  full  communion 
with  the  said  church,  to  wit,  "The  First  Reformed  Presbyterian 
Congregation  in  the  City  of  Philadelphia,"  and  that  the  defendant 
did  not,  by  virtue  of  any  election  at  that  time,  become  lawfully 
authorized  and  entitled  with  Charles  Williams,  Thomas  Johnston, 
James  Smyth,  Abram  Walker,  William  G.  Porter,  and  John  Petti- 
grew,  to  exercise  the  office  of  Trustee  of  said  Corporation,  or  have, 
use,  or  enjoy,  the  franchises,  liberties,  or  privileges  appertaining 
thereunto.  And  the  said  Relators  put  themselves  upon  the  coun- 
try, &c. 

3.  And  the  said  Relators  do  further  say,  that  by  reason  of  any- 
thing in  the  third  plea  alleged,  the  said  Commonwealth  ought  not 


(  xxiv  ) 

to  be  barred  from  having  the  said  suggestion  and  petition  against 
the  said  defendants,  Charles  Williams,  Thomas  Johnston,  James 
"Smyth,  Abram  Walker,  William  G.  Porter,  John  Pettigrew,  and 
George  H.  Stuart,  Jr.,  because  protesting  that  the  said  third  plea, 
and  the  matters  therein  contained,  are  not  sufficient  in  law  to  bar 
the  said  Commonwealth  from  having  the  aforesaid  suggestion  and 
petition  against  the  said  defendants,  to  which  third  plea  in  manner 
and  form  above  pleaded,  the  said  Relators  are  under  no  necessity, 
nor  in  any  way  obliged  to  answer ;  for  replication,  nevertheless, 
the  said  Relators  say,  that  the  Relators  were,  on  the  first  day  of 
July,  A.D.  1868,  and  before  that  day,  and  ever  since  that  time, 
and  are  now,  corporators  of  said  corporation,  and  are,  in  due  and 
regular  form  of  law,  elected  Trustees  of  said  Corporation. 

And  of  this  the  said  Relators  put  themselves  upon  the  country, 
&c. 

J.  SERGEANT  PRICE, 
F.  CARROLL  BREWSTER, 

For  Relators. 


NOTE. — It  will  be  observed  that  the  following  speeches  of  Counsel  were  deli- 
vered extempore,  and  are  printed  from  the  stenographer's  report.  The  reader 
will,  therefore,  not  expect  to  find  in  them  the  literary  finish  which  may  be  rea- 
sonably looked  for  in  orations  committed  to  writing  before  delivery. 


I 


3 


Monday,  3d  April,  1871. 

Mr.  Patterson,  in  opening  the  argument  for  the  Defendants, 
said,  in  substance  ; 

May  it  please  your  Honor  :   Gentlemen  of  the  Jury  ; 

I  agree  with  my  friend,  Mr.  Price,  in  his  congratulations  upon 
our  approach  to  the  termination  of  this  very  protracted  trial.  I 
agree  with  him  also,  [I  state  this  with  the  more  pleasure,  because 
there  are  very  few  of  the  statements  which  he  has  made  to  you  in 
which  I  am  so  fortunate  as  to  be  able  to  concur],  in  his  regret 
that  so  much  irrelevant  testimony  has  been  introduced  into  this 
cause.  It  is  too  late  now  to  discuss  the  question  of  responsibility 
for  the  introduction  of  such  testimony  ;  but,  I  am  perfectly  will- 
ing to  submit  this,  in  common  with  all  the  other  questions  in  this 
cause,  to  your  impartial  determination,  for  I  feel  assured,  that  you 
have  by  this  time  recognized  the  fact  that  the  Defendants  have 
had  but  one  desire,  which  was  to  meet  and  answer  every  charge 
which  the  Relators  have  made  against  them. 

The  issues  in  this  case,  upon  which  you,  Gentlemen  of  the  Jury, 
are,  under  the  law  and  the  evidence  to  make  up  your  verdict,  are 
these  ; 

First,  Were  the  Defendants  elected  Trustees  on  the  first  Mon- 
day of  January,  1870? 

Second,  Was  Mr.  George  H.  Stuart,  Jr.,  elected  a  Trustee  on 
2d  March,  1870  ? 

Third,  Were  the  Relators  on  the  first  of  July,  1868,  and  have 
they  since  been,  Corporators  of  the  First  Reformed  Presbyterian 
Congregation  in  the  City  of  Philadelphia  ? 

The  Relators  originally  brought  this  action  to  try  title  to  the 
offices  of  Trustees  for  1869.  Subsequently,  under  the  advice  of 
able  and  learned  counsel,  they  amended  the  record,  so  as  to  try 
the  title  of  the  Trustees  for  1870.  You  will  see  from  this,  Gentle- 
men of  the  Jury,  that  the  titles  of  the  Trustees  for  1868  are  not 
directly  involved  in  this  inquiry,  and  are  indirectly  involved,  only 

1 


in  so  far  as  the  determination  of  that  question  can  have  a  hearing 
upon  the  issues  raised  by  the  pleadings  in  this  case.  But  how  can 
it  have  any  hearing  upon  those  issues  ?  Even  if  the  Relators 
could  show  that  they  had  been  elected  in  1868,  it  would  not  neces- 
sarily follow  that  they  were  elected  in  1870,  nor  would  it  have 
any  tendency  to  prove  that  they  were  Corporators  on  the  first  day 
of  July,  1868,  six  months  after  the  election  of  1868.  As  I  have 
shown  you,  the  pleadings  in  this  cause  gave  us  no  reason  to  sup- 
pose that  the  Relators  would  on  the  trial  introduce  any  evidence 
with  regard  to  the  election  of  1868,  and  we  had  no  express  notice 
of  any  such  intention  on  their  part.  They  brought  it  in,  there- 
fore, thinking  that  we  would  not  be  ready  to  meet  it,  but,  Gentle- 
men, we  have  met  it,  and  we  have  vindicated,  to  your  entire  satis- 
faction, I  am  sure,  the  course  of  the  Defendants  and  their  friends 
in  regard  to  that  election. 

The  troubles  in  this  Congregation  were  approaching  their  climax 
in  the  latter  part  of  the  year  1867. 

Much  has  been  said  to  you  about  the  Union  Meetings  that  were 
held  in  the  Church  at  that  time.  My  learned  friend,  Mr.  Price, 
went  so  far  as  to  charge  that  these  meetings  were  called  for  the 
purpose  of  fomenting  dissensions  in  the  Congregation.  If  that  be 
so,  the  responsibility  therefor  rests  upon  the  Synod,  because  it  was 
the  Synod,  meeting  in  New  York,  in  1867,  that  initiated  the  dis- 
cussion of  an  organic  union  between  the  different  denominations 
adhering  to  the  Presbyterian  faith  and  form  of  church  govern- 
ment. It  was  the  Synod  that  called  the  Union  Convention  which 
met  in  this  Church  in  October,  1867.  One  of  the  most  prominent 
men  in  that  Convention  was  the  Rev.  Dr.  McLeod,  of  New  York. 
The  Relators  have  produced  him  here  as  a  witness.  They  have 
asked  him  many  questions,  but  they  did  not  ask  him  to  tell  why 
the  Convention  was  held,  to  go  into  its  history,  to  state  what  of- 
ficial position  he  held  in  it,  and  what  part  he  took  in  its  delibera- 
tions. He  gave  us  no  information  on  these  points.  Nor  have  the 
Relators  been  more  ready  to  bring  to  your  notice  the  true  history 
of  the  congregational  Union  Meetings. 

Now,  Gentlemen,  the  purpose  of  that  Union  Convention  of 
1867,  and  the  work  effected  by  it,  has  been  much  misunderstood. 
That   Convention   did  not   take  any  definitive  action.     It    simply 


adopted  a  basis  of  union  which  it  recommended  to  the  highest  ju- 
dicatories of  the  respective  denominations,  in  order  that  those 
bodies  might,  if  they  approved  of  it,  form  upon  that  basis  an  or- 
ganic union  of  the  Churches  severally  represented  by  them.  It 
was,  therefore,  the  purpose  of  the  Convention,  not  to  detach  this, 
or  any  other  congregation,  from  the  Reformed  Presbyterian  Church 
but  to  suggest  to  the  Synod,  for  legislative  action  by  it,  a  basis  upon 
which  the  Synod  and  every  congregation  represented  by  it  could 
unite  with  the  other  members  of  the  great  Presbyterian  family. 
When,  therefore,  this  particular  Congregation  came  in  November 
and  December,  1867,  to  discuss  this  basis  of  union,  they  considered 
it,  not  with  reference  to  any  separate  action  on  their  part,  but 
only  with  reference  to  the  formation  and  expression  of  the  opinion 
of  the  Congregation  as  to  the  action  which  ought,  upon  the  sub- 
ject of  union,  to  be  taken  by  their  representatives  in  Synod  assem- 
bled. But,  Gentlemen,  it  has  been  said  again  and  again  in  the 
progress  of  this  cause  that  if  that  union  had  been  consummated 
the  denomination  to  which  this  Congregation  belongs  would  have 
been  compelled  to  relinquish  their  most  distinctive  characteristic, 
that  is,  the  exclusive  use  in  public  praise  of  the  metrical  version 
of  the  Psalms  of  David.  .The  basis  of  union  says  upon  this  point 
(Minutes  Presbyterian  National  Union  Convention,  Philadelphia, 
1867,  p.  143):  "IV.  The  Book  of  Psalms,  which  is  of  Divine 
"inspiration,  is  well  adapted  to  the  state  of  the  Church  in  all  ages 
"and  circumstances,  and  should  be  used  in  the  worship  of  God. 
"Therefore,  we  recommend  that  a  new  and  faithful  version  of  the 
"Psalms  be  provided  as  soon  as  practicable.  But  inasmuch  as 
"various  collections  of  Psalmody  are  used  in  the  different  Church- 
"es,  a  change  in  this  respect  shall  not  be  required." 

I  have  thus  shown  you  that  there  could  not  have  been  on  the 
part  of  those  of  the  Defendants  and  their  friends  who  participated 
in  the  Convention,  and  in  the  subsequent  Congregational  Meetings, 
any  purpose  to  carry  this  congregation  over  to  the  Presbyterian 
Church,  or  to  make  it  anything  else  than  what  it  always  has  been 
and  is  still,  a  Congregation  of  the  Reformed  Presbyterian  Church. 
I  have  shown  you  also  that  there  could  not  have  been,  on  the 
part  of  those  same  persons,  any  purpose   to   abandon  the  ancient 


Psalmody  or  to  introduce  into  the  public  worship  of  the  Church, 
the  much-dreaded  hymns,  unless  and  until  such  change  should  be 
authorized  by  the  law  of  the  Church.  It  is  undoubtedly  a  crime 
to  break  the  laws  of  the  church,  but  it  is  not  a  crime  to  discuss 
the  propriety  of  a  change  in  those  laws.  It  is  not  a  crime  in  the 
members  of  any  Christian  church  to  desire  to  form  a  union  with 
another  denomination,  with  whom  they  are  at  one  in  all  the  es- 
sentials of  the  Christian  faith.  If  that  be  a  crime  what  shall  be 
said  for  those  members  of,  for  those  clergymen  lately  in,  the  Re- 
formed Presbyterian  Church,  who  after  discussing  and  agitating 
for  a  union  with  the  United  Presbyterian  Church,  have  now 
taken  the  law  into  their  own  hands,  and  severally  seceded  to  that 
Church  ?  If  it  be  a  crime  to  desire  an  organic  union  of  two 
denominations,  who  shall  defend  Dr.  McMaster  (the  Chairman 
of  that  Synodical  Commission,  of  which  you  have  heard  so  much 
in  this  case),  who  failing  to  effect  the  organic  union  he  desired, 
has  not,  like  the  Reformed  Presbytery  of  Philadelphia,  remained 
in  the  church,  but  has  formed  another  ecclesiastical  connection  ? 
Now,  all  that  the  Defendants  and  their  partisans  have  done,  has 
been  to  ask  the  proper  ecclesiastical  authority,  that  is,  the  Synod, 
for  action  in  this  matter  of  union.  So  far  as  regards  breaking 
the  laws  of  the  Church  is  concerned,  I  shall  show  you  beyond 
possibility  of  doubt  or  cavil,  that  those  who  have  broken  its  laws 
are  the  Synod,  not  the  Presbytery,  the  Relators,  not  the  defendants. 

In  the  next  place  I  come  to  consider  the  testimony  with  regard 
to  the  election  of  1868.  I  shall  pass  as  briefly  as  possible  over 
this  irrelevant  mass  of  evidence,  touching  only  upon  one  or  two 
salient  points. 

First,  there  is  the  conspiracy,  that  mysterious  conspiracy,  of 
which  we  have  not  heard  one  word,  until  my  friend  Mr.  Price 
came  to  sum  up  the  argument,  to  which  he  did  not  refer  in  his 
opening  speech,  and  of  which  there  is  not  one  scintilla  of  proof 
in  the  cause.  What  is  this  alleged  conspiracy  ?  A  plot  or  com- 
bination to  prevent  the  election  of  the  Relators  in  1868.  Who 
are  the  alleged  conspirators  ?  The  Defendants  in  this  cause,  all  of 
them  gentlemen  of  high  character  and  well  known  in  this  com- 
munity,  and  combining   with  them  such  men   as  the    Rev.    Dr. 


Wylie,  and  Mr.  George  H.  Stuart.  Is  it  probable  that  such  men 
"would  conspire  to  defraud  any  one  of  his  rights  ?  But  look  at  the 
facts  in  proof.  The  witnesses  on  both  sides  concur  in  characteriz- 
ing the  Congregational  Meeting  of  1868,  as  very  crowded  and 
very  disorderly.  You  have  heard  from  witness  after  witness  graphic 
descriptions  of  the  various  manifestations  of  that  disorder,  the 
hissing,  hooting,  cries  of  "Psalms  vs.  Hymns,"  the  sounds  as  of 
steam  whistles  in  a  tunnel.  It  is  clear  that  this  disorder  was  not 
created  by  the  Defendants  or  by  their  friends,  for  it  was  all 
directed  against  them,  and  it  was  loudest  and  most  uncontrollable, 
when  any  partisan  of  the  Defendants  attempted  to  speak.  I  have 
too  much  respect  for  the  Relators  and  their  partisans  in  the  con- 
gregation to  believe  that  any  of  them  were  participants  in  that 
disorder.  I  must  believe  that  it  was  all  created  by  those  strangers 
who  were  brought  in  from  the  street  to  vote  the  Relators'  ticket. 
On  this  point  you  will  remember,  Gentlemen,  that  we  have  called 
very  many  witnesses,  among  them,  some  of  the  oldest  members  of 
the  Congregation,  who  have  told  you  that  they  saw  at  that  meeting 
and  in  the  line  of  voters,  the  faces  of  many  people  whom  they  had 
never  seen  in  the  church  before.  The  subsequent  revision  of  the  list 
of  voters,  to  which  I  shall  refer  presently,  abundantly  confirms  this 
evidence  of  the  participation  of  strangers  in  the  election.  You  have 
heard  the  minutes  of  that  meeting  read  as  recorded  by  the  Secreta- 
ry, Mr.  Thomas  Johnston.  Those  minutes  are  in  the  main  corrobo- 
rated both  by  the  witnesses  for  the  Relators,  and  by  those  for  the 
Defendants.  But  on  one  point,  that  of  the  passage  of  the 
resolution  to  refer  to  arbitration  the  question  of  the  election,  there 
is  a  conflict  of  evidence.  The  minutes  say;  "  at  the  conclusion 
"  of  the  balloting  and  previous  to  the  report  of  the  Tellers,  it  was 
"on  motion  ordered  that  the  votes  polled  remain  in  the  custody 
"  of  the  tellers  until  the  list  of  the  parties  voting  be  submitted  to 
"  the  session  and  Board  of  Trustees,  for  their  examination,  in 
"  order  to  ascertain  whether  all  the  votes  cast  were  legal,  protests 
"  against  certain  votes  having  been  entered  during  the  progress 
"  of  the  balloting,  and  no  certificates  of  election  to  be  given  until 
"  it  had  been  ascertained  that  no  illegal  votes  had  been  cast. 
"  Several  other  motions  were  offered  touching  the  question,  but 
"were  afterwards  withdrawn.     It  was   then  asked,  could  not  the 


6 

"  votes  be  counted  and  a  report  of  the  same  be  made  to  the 
"  meeting.  After  some  discussion  this  was  finally  agreed  to,  with 
"  the  understanding  that  the  validity  of  the  election  be  under  the 
"restriction  imposed  by  the  former  resolution."  My  learned 
friends  say  that  no  such  resolution  was  passed,  but  we  have  sup- 
ported the  Minutes,  and  proved  by  a  cloud  of  witnesses  the  passage 
of  the  resolution  in  those  terms.  I  shall  not  comment  upon  their 
testimony.  I  shall  simply  read  over  to  you  the  names  of  those  who 
upon  their  solemn  oaths  have  said  in  your  presence  that  that  reso- 
lution was  passed.  You  heard  the  examination  of  each  one  of  those 
witnesses  ;  you  saw  how  particular  we  were  in  calling  the  attention 
of  each  one  to  the  terms  of  the  resolution  ;  how  careful  we  were  to 
ask  of  each,  who  had  moved  the  resolution,  who  seconded  it, 
whether  the  question  was  put  by  the  chair,  whether  there  was  a 
vote  upon  it,  and  lastly,  whether  it  was  carried.  You  heard  the 
clear  and  distinct  answers  of  the  witnesses  upon  all  these  points, 
all  concurring  as  to  the  terms  of  the  resolution,  the  vote  upon  it 
and  its  passage.  You  saw  that  the  witnesses  were  men  of  cha- 
racter, men  to  whom  the  taking  of  a  judicial  oath  and  the  giving 
of  testimony  in  a  court  of  justice,  is  no  light  matter,  and,  as  you 
heard  them,  you  were  impressed  with  their  belief  in  the  truth  of 
their  testimony.  You  saw  also,  Gentlemen  of  the  Jury,  that  the 
Counsel  for  the  Relators  were  so  impressed  with  the  truth  of  the 
testimony  of  these  witnesses  that  they  did  not  cross-examine  one 
of  them  on  this  point.  These  witnesses  are  James  Graham, 
chairman  of  the  Meeting,  Thomas  Johnston,  its  Secretary,  Cham- 
bers, and  John  Pettigrew,  two  of  the  four  tellers,  Dr.  Faires, 
Messrs.  Grant,  Ray,  T.  M.  Kerr,  James  Smyth,  Black,  W.  J. 
Faires,  Martin,  Dick,  Henry,  Williams,  J.  G.  H.  Pettigrew, 
George  H.  Stuart,  Hutchison,  Theodore  Graham,  Jackson,  Geo. 
H.  Stuart,  Jr.,  Brown,  Neely,  Marshall  Scott,  George  H. 
Smith;  twenty-five  in  all.  Two  of  these  witnesses,  Messrs.  Gra- 
ham and  Johnston,  the  Chairman  and  Secretary  of  the  Meeting, 
stood  so  high  in  the  opinion  of  the  whole  congregation,  and  were 
believed  to  be  so  far  above  the  party  conflict  which  was  agitating 
the  congregation,  that  they  were  not  only  unanimously  selected 
as  officers  of  the  Meeting,  but  they  were  also  nominated  by  both 
parties  as  candidates  for  election  as  Trustees  ;   yet  these  are  the 


men  who  are  now  charged  with  the  crime  of  falsifying  the 
Minutes.  But,  Gentlemen,  we  have  disproved  that  charge.  \^e 
have  supported  the  Minutes  by  the  mass  of  testimony,  to  which  I 
have  referred.  We  have  proved  that  the  resolution  of  reference 
was  passed,  and  that  Dr.  McMurray  himself  favored  its  passage. 
Upon  what  testimony  do  the  Relators  rely  in  opposition  to  this? 
They  produce  eight  witnesses,  Messrs.  McMurray,  Young,  Big- 
gerstaff,  James  Stewart,  Tait,  Mcllwain,  McLeod,  and  Taylor, 
who,  with  wonderful  unanimity,  agree  in  stating  that  the  resolu- 
tion of  reference  was  offered,  but  that  it  was  not  passed ;  yet  no 
one  of  these  gentlemen  can  tell  you  what  became  of  the  resolu- 
tion. Now  is  it  reasonable  to  suppose  that  if  each  one  of  them 
had  given  to  you  his  fair  and  honest  recollection,  some  one  of 
them  would  not  have  been  able  to  tell  you  what  was  done  with  the 
resolution  ?  Surely  a  matter  so  important  as  the  disposition  made 
of  a  proposition  to  arbitrate  that  contested  election,  must  have 
impressed  itself  upon  their  minds.  Remember,  Gentlemen,  that 
one  at  least  of  those  witnesses,  Mr.  Ephraim  Young,  is  a  man  of 
really  extraordinary  power  of  memory.  He  was  able  after  the 
lapse  of  more  than  three  years,  to  tell  you  with  literal  accuracy 
how  many  votes  each  one  of  twelve  candidates  received  at  that 
election  of  1868  ;  and  yet  he  cannot  tell  you  what  became  of  the 
resolution.  You  will  remember  also,  Gentlemen,  that  these  eight 
witnesses  for  the  Relators  agreed  in  the  statement  that  though  no 
resolution  of  reference  was  passed,  that  yet  there  was  by  general 
consent  an  agreement  that  the  Session  and  Board  of  Trustees 
might  examine  the  list  of  voters,  not  as  Arbitrators,  not  with  a 
view  to  determine  anything,  but  simply  "  for  their  own  satisfac- 
tion." Is  not  the  absurdity  of  that  patent  ?  It  required  no 
general  agreement  to  authorize  the  Session  and  Board  of  Trustees 
to  do  that ;  what  satisfaction  could  it  be  to  them  to  perform  the 
onerous  duty  of  scrutinizing  the  list,  when  their  examination  was 
to  decide  nothing  ? 

I  have  endeavored,  Gentlemen,  at  every  stage  of  this  unhappy 
litigation,  in  which  I  have  been  brought  into  contact  with  these 
Relators,  to  treat  them  with  kindness  and  courtesy.  I  do  not  now 
propose  to  alter  my  course  in  that  respect.  I  shall  not,  therefore, 
speak  harshly  of  these  eight  witnesses.     But    I  am   bound  to  call 


your  attention  to  the  wonderful  uniformity  of  their  testimony  not 
orfly  upon  the  main  points,  but  also  upon  all  the  minor  and  unim- 
portant details  ;  and  to  suggest  to  you  in  all  kindness  to  them, 
that  the  best  explanation  of  that  coincidence  is  this,  that  these 
■witne-ses  have  intended  to  tell  you  the  truth,  but  that,  during  the 
last  three  years,  they  have  talked  the  matter  over  so  often  among 
themselves,  that  they  have  come  to  believe  that  to  be  the  fact  which 
they  wished  to  be  the  fact,  and  that  some  one  man,  of  stronger 
character  than  the  rest,  has  impressed  his  version  of  the  story  upon 
them  so  strongly,  that  it  has,  so  to  speak,  become  stereotyped  in 
their  memories  ;  and  in  this  way  they  have  told  here  a  story, 
which  is  as  different  from  the  truth,  as  night  from  day,  or  darkness 
from  light.  But  there  are  two  partisans  of  the  Relators,  who  do 
not  support  these  eight  witnesses.  First,  Mr.  George  Gordon,  for 
whose  character  I  entertain  a  very  sincere  respect.  Mr.  Gordon 
admits  that  there  was  an  agreement  of  reference,  though  no  reso- 
lution to  that  effect  was  passed.  Next  Mr.  Robert  Guy,  one  of 
the  Relators'  elders,  the  oldest  member  of  their  Congregation,  and 
a  gentleman,  the  integrity  and  purity  of  whose  character  com- 
mand the  respect  of  all  who  know  him.  The  Relators  called  him 
as  a  witness  and  examined  him  upon  other  points,  but  they  did  not 
ask  him  a  question  as  to  this  resolution  of  reference.  Yet  he  was 
at  that  annual  meeting  of  1868,  and  took  a  prominent  part  in  its 
deliberations.  Ah,  Gentlemen,  the  Relators  had  some  good  rea- 
son for  not  examining  him  upon  this  point.  This  has  been  no  ac- 
cidental omission.  He  certainly  would  not  have  supported  their 
eight  witnesses,  or  they  would  not  have  failed  to  have  propped  up 
their  weak  and  failing  cause  at  this  critical  point  by  the  tower  of 
strength  which  his  testimony,  supported  by  his  character,  would 
have  been  to  them.  Yes,  Gentlemen,  the  two  men  of  highest  char- 
acter in  the  Relators'  party  do  not  support  their  eight  witnesses 
upon  this  point. 

Now,  if  the  testimony  to  which  I  have  already  referred, 
were  all  that  bears  upon  this  point,  you  could  not  fail  to  adopt 
our  view  of  it ;  for  on  our  side  the  witnesses  are  twenty-five 
in  number,  and,  adding  Messrs.  Guy  and  Gordon,  twenty-seven, 
to  the  Relators'  eight.  But  this  is  not  all.  We  have  on  our  side 
the  corroborating  evidence  of  the  Relators'  subsequent  acts.     The 


i 


annual  meeting  of  6th  January,  1868,  adjourned  to  meet  on  the 
13th  of  January,  for  the  purpose  of  hearing  the  report  of  the  ses- 
sion and  Board  of  Trustees  on  the  list  of  voters.  To  that  meet- 
ing of  the  13th,  called  for  that  purpose  and  that  purpose  only,  the 
Relators  and  Messrs.  McMurray  and  Guy  came.  If,  as  they  now 
say,  t\e  resolution  of  reference  was  not  passed,  why  did  they  come 
to  a  meeting  convened  for  the  purpose  of  hearing  the  report  of 
the  Referees  ?  At  that  meeting  the  Minutes  of  the  previous  meet- 
ing, containing  the  resolution  of  reference,  were  read.  Did  any 
one  object  that  the  resolution  had  not  been  passed  ?  No.  Mr. 
Young  objected  to  another  portion  of  the  Minutes.  But  some  of 
their  witnesses  say  the  Minutes  were  not  adopted,  and  on  this 
point  some  of  our  witnesses  contradict  them.  But  what  matters 
it,  whether  they  were  adopted  or  not  ?  The  fact  remains  that  the 
Minutes,  including  the  resolution  of  reference,  were  read,  and 
no  one  of  these  eight  witnesses,  who  have  since  sworn  that  that 
resolution  was  not  passed,  then,  when  the  matter  was  fresh  in 
their  recollections,  objected  to  the  Minutes  on  that  ground. 
Another  point ;  at  that  meeting  Dr.  McMurray  moved  to  declare, 
valid  the  election  held  at  the  previous  meeting.  If  he  had  be- 
lieved, as  he  now  testifies,  the  Relators  to  have  been  then  elected 
would  he  have  moved  to  declare  the  election  valid  ?  Such  a 
resolution  necessarily  implies  that  there  was  something  defec- 
tive which  the  action  of  the  congregation  was  to  validate.  At 
this  meeting,  the  session  reported  that,  owing  to  the  absence  of 
their  Moderator,  they  had  not  been  able  to  conclude  their  scrutiny 
of  the  list.  That  report  was  read  to  the  congregation,  and  yet  no 
one,  not  even  Dr.  McMurray  himself,  then  objected  that  the  mat- 
ter had  never  been  referred  to  them.  That  Meeting  adjourned,  as 
some  of  the  witnesses  say,  to  come  together  again  on  13th  Febru- 
ary for  the  purpose  of  hearing  the  report  of  the  arbitrators.  But 
whether  it  adjourned  to  that  fixed  date  or  not  is  immaterial,  for,  as 
we  have  shown  you,  on  Sabbath,  8th  February,  notice  was  read 
that  a  congregational  meeting  would  be  held  on  13th  February 
for  the  purpose  of  hearing  the  report.  On  the  evening  of  the 
13th  the  meeting  convened  in  obedience  to  that  notice,  and  all  the 
Relators  and  these  eight  witnesses  came  to  hear  the  report  of 
those  arbitrators  to  whom   they  now  say,  the  matter  was  not   re- 


10 

ferred.  The  reports  of  the  session  and  Board  of  Trustees  were 
read.  A  motion  was  made  to  accept  the  reports.  The  chairman, 
Mr.  Graham,  declared  it  carried.  Some  one  then  moved  to  ad- 
journ. The  chairman  declared  that  carried.  Some  of  the  Rela- 
tors' witnesses  say  that  the  chairman  erred  in  these  decisions. 
All  the  witnesses  concur  in  describing  a  scene  of  great  disorder, 
a  very  Babel.  Under  such  circumstances,  who  would  be  most 
likely  to  determine  accurately  the  result  of  the  votes,  the  chair- 
man, whose  faculties  were  all  concentrated  in  the  efforts  to  decide 
correctly,  or  the  disappointed  participants  in  the  struggle?  Re- 
member also,  upon  this  point,  that  the  accuracy  of  Mr.  Gra- 
ham's decision  is  supported  by  many  of  our  witnesses.  Remember 
also  who  Mr.  Graham  is,  and  in  what  estimation  the  whole  congre- 
gation held  him. 

But  whether  the  reports  were  accepted  or  not  is  a  matter  of  no 
moment.  It  is  sufficient  that  they  were  read.  Those  reports 
were  the  decisions  of  the  judges  selected  by  the  congregation  and, 
therefore,  not  subject  to  its  review,  nor  dependent  for  their  validity 
upon  its  confirmation. 

Now,  gentlemen,  considering  the  weight  of  testimony,  twenty- 
seven  witnesses  on  our  side,  eight  for  the  Relators  ;  and  the  testi- 
mony of  our  twenty-seven  strengthened  and  made  impregnable  by 
the  corroborating  facts  furnished  by  the  Relators'  acts  to  which  I 
have  referred  you,  can  you,  as  reasonable  men,  doubt  that  that 
resolution  of  reference  was  passed? 

The  fact  of  the  reference  having  thus  been  established  let  us 
next  consider  who  the  arbitrators  were.  My  learned  opponents 
have  again  and  again  told  you  that  those  arbitrators  were  candi- 
dates at  the  very  election,  upon  whose  validity  they  were  to 
decide,  and  have^endeavored  to  argue  that  the  congregation  could 
not  be  supposed  to  have  intended  to  make  judges  of  those  who 
were  directly  interested  in  the  matter  in  controversy.  I  shall 
crush  this  argument  by  showing  the  fallacy  of  the  premises  on 
which  it  is  based.  The  resolution  of  reference  appoints  as  arbi- 
trators the  Board  of  Trustees  and  the  Session.  The  then  Trustees 
had  been  elected  in  January,  1867,  and  were  as  follows :  Messrs 
Graham,  Johnston,  James  Stewart,  Young,  Ray,  Kerr  and  Deni- 
son.     Mr.  Denison  died  in   December,  1867,  before  the  culmina- 


I 


11 

tion  of  the  troubles.  Of  the  remaining  six,  two,  Messrs.  Stewart 
and  Young,  were  candidates  upon  the  Relators'  ticket.  It  is  not 
probable  that  they  would  be  biased  against  the  Relators.  Messrs. 
Graham  and  Johnston  had  every  reason  to  be  unbiased,  for  they 
were  candidates  on  both  tickets  as  well  as  members  of  the  old 
Board.     In  any  event,  therefore,  they  would  remain  in  office. 

The  remaining  two  were  candidates  on  the  Defendants'  ticket. 
Of  the  six  Trustees,  therefore,  the  Relators  had  two,  the  De- 
fendants had  two,  and  the  remaining  two  were  on  both  tickets. 
The  session  consisted  of  the  following  members :  Dr.  Wylie,  Mr. 
Sterling,  that  venerable  man  who  full  of  years  and  honor  shortly 
after  went  to  his  rest ;  Messrs.  Geo.  H.  Stuart,  James  P.  Smyth, 
Ray,  Chambers,  Grant,  Guy  and  McMurray.  Only  one  member 
of  Session,  Mr.  Ray,  was  a  candidate  at  the  election.  You  know 
in  what  estimation  he  was  always  held  in  this  congregation. 
Several  of  the  witnesses  have  characterized  him  as  a  very  Na- 
thaniel. You  will  recollect  also  that  at  the  most  turbulent  period 
of  the  meeting  of  6th  January,  1868,  when  Mr.  Sterling  rose  to 
speak,  and  so  great  was  the  disorder  that  that  venerable  man 
could  not  be  heard,  Mr.  Ray  alone  succeeded  in  quieting  the 
seething  waves  of  party  spirit.  In  so  great  respect  was  he  held 
by  everybody,  that  at  his  request  the  clamor  ceased  and  Mr. 
Sterling  was  allowed  to  proceed.  Yet  this  is  the  man  who  was 
too  biased  to  be  permitted  to  sit  as  an  arbitrator  in  this  matter,  and 
who  is  now  alleged  to  have  been  a  participant  in  that  mysterious 
conspiracy  to  take  away  the  rights  of  this  Congregation.  You 
will  notice  also  that  the  Relators  were  represented  in  Session  by 
Messrs.  Guy  and  McMurray,  the  leaders  of  their  party.  Sum- 
ming up  the  list  of  arbitrators,  out  of  the  fourteen  Trustees  and 
members  of  Session,  two  were  candidates  for  election  on  the 
Defendants'  ticket,  two  on  the  Relators,  two  on  both  tickets  and 
the  remaining  eight  were  not  candidates  at  the  election.  So  much 
for  the  constitution  of  the  Arbitrators.  How  did  they  proceed  to 
act  in  the  performance  of  the  duty  imposed  upon  them?  Did  they 
act  like  men  who  were  about  to  commit  a  fraud  ?  Like  men  who 
had  something  to  conceal  ?  The  Session  met  for  this  purpose  on 
9th  and  29th  January,  4th,  8th  and  13th  February,  of  all  of 
which  meetings  Messrs.  Guy  and  McMurray  were  notified,  and  at 


12 

all  of  which,  except  the  first,  they  were  present.  The  Session  ap- 
pointed, as  a  suh-Committee  to  examine  the  list,  Messrs.  Geo.  H. 
Stuart,  Grant,  and  Guy  ;  thus,  as  you  see,  taking  care  to  give  the 
Relators  ^representative  on  that  Committee. 

Mr.  Guy  declined  to  act,  assigning  no  reason  for  his  refusal, 
and  Mr.  James  P.  Smyth,  because  of  his  well-known  charac- 
ter for  moderation,  and  because  he  was  not  a  partisan  of  the  De- 
fendants, was  selected  in  his  place.  The  Board  of  Trustees  met  for 
the  purpose  of  performing  their  duties  as  Arbitrators  on  the  29th 
January,  and  8th  and  13th  February.  We  have  proved  that 
Messrs.  E.  Young  and  James  Stewart  were  notified  of  each  of 
these  Meetings,  but  they  did  not  choose  to  attend.  The  remain- 
ing members  of  the  Board  appointed  as  a  Sub-Committee,  to 
make  a  preliminary  examination  of  the  list  of  voters,  Messrs. 
Ray  and  James  Stewart,  but  Mr.  Stewart  declined  to  act,  frankly 
assigning  as  a  reason  that  his  Counsel  had  advised  him  not  to. 
Now,  Gentlemen,  I  put  it  to  you  as  candid  men,  does  the  pro- 
cedure of  the  Arbitrators,  which  I  have  thus  detailed  to  you,  look 
like  an  attempt  to  commit  a  fraud,  to  carry  out  in  secret  the  plan 
of  a  conspiracy  against  the  other  members  of  the  congregation  ? 
If  there  had  been  any  such  purpose  on  their  part  would  they  have 
been  so  careful  to  give  notice  of  all  their  meetings  to  Messrs. 
McMurray,  Guy,  Young  and  Stewart  ?  Would  they  have  ap- 
pointed Mr.  Guy  on  the  Sessions'  Sub-Committee,  or  Mr.  James 
Stewart  on  the  Trustees'  Sub-Committee?  Is  it  not  clear  that  they 
were  acting  as  honest  men  who  had  a  duty  to  perform,  and  who 
were  determined  to  do  it,  fearlessly  and  openly  in  the  sight  of 
God  and  men  ? 

In  the  next  place  let  me  call  your  attention  to  the  fact  that  the 
resolution  of  reference  in  express  terms  submitted  to  the  Arbitra- 
tors the  question  of  the  validity  of  the  election,  and  provided 
that  "  no  certificates  of  election  be  given  until  it  had  been  ascer- 
tained that  no  illegal  votes  had  been  cast,"  thereby  necessarily 
implying  that,  if  illegal  votes  had  been  cast,  the  election  should  be 
declared  invalid.  The  Arbitrators  concurred  in  finding  that  one 
hundred  and  twenty-seven  illegal  votes  had  been  cast  at  the  elec- 
tion, and  so  reported  to  the  congregation. 

I  submit  to  your   Honor,  as    matter  of  law,  that   the  fact  of 


I 


13 

the  reference  having  been  established,  and  it  having  also  been 
proved  that  the  Arbitrators  acted  in  good  faith  in  the  perform- 
ance of  the  duties  imposed  upon  them,  it  must  follow,  that  their 
report  is  final  and  conclusive  upon  the  parties,  whether  they  were 
right  or  wrong  in  so  deciding.  Upon  this  point  I  refer  you  to 
the  cases  of  McManus  vs.  McCulloch,  6  Watts  360 ;  Getty  vs. 
Wilson,  7  P.  F.   Smith  269. 

But  were  not  the  Arbitrators  right  in  so  deciding?  The  sixth 
article  of  the  charter  of  this  Congregation  prescribes  "  that  the 
persons  capable  of  electing  shall  be  all  who  are  in  full  communion 
with  the  congregation,  as  well  as  all  pew-holder,  though  not 
in  full  communion."  We  have  shown  you  that  by  the  unvary- 
ing usage  of  this  congregation  no  pew-holder  owns  his  pew,  but 
is  merely  a  tenant  from  quarter  to  quarter  and  that  the  Trustees 
are  lessors  of  the  pews,  and  as  such  have  the  right  to  determine 
the  letting  at  the  end  of  any  quarter.  We  have  also  shown  you 
the  twelfth  Article  of  the  By-Laws  of  the  Board  of  Trustees, 
which  regulates  their  action,  as  such  lesors. 

"All  persons  neglecting  to  pay  their  pew  rent,  for  two  quarters 
"without  giving  satisfactory  reasons  for  such  neglect  to  the  Indoor 
"  Committee,  shall  be  liable  to  the  forfeiture  of  their  right  to 
"said  pews."  We  have  also  proved  to  you  that  by  the  usage  of 
this  Congregation  the  term  "  full  communion,"  as  used  in  the 
sixth  Article  of  the  Charter,  means  not  merely  persons  who  are 
entitled  to  come  to  the  Communion  table,  but  persons  so  entitled 
who  also  contribute  to  the  support  of  the  Gospel  by  regular  pay- 
ment of  pew  rent.  We  have  shown  you  further  that  every  com- 
municant upon  being  admitted  to  membership  takes  a  solemn  obli- 
gation to  make  such  contributions,  to  the  support  of  the  Gospel. 
Such  is  the  law  by  which  the  Arbitrators  were  bound.  When, 
therefore,  they  found  on  the  list  of  voters  the  names  of  certain 
persons  who  had  been  communicants,  but  who  were  not  contribu- 
tors to  the  support  of  the  Gospel,  in  the  way  I  have  explained  to 
you,  could  they  say  that  such  persons  were  members  in  "  full 
communion  ?"  On  the  contrary,  were  they  not  bound  to  say  that 
such  persons,  not  being  members  in  "full  communion  "  nor  pew- 
holders,  were  not  entitled  to  vote  ?  Were  they  not  bound,  there- 


14 

fore,  to  strike  the  names  of  such  persons  from  the  list  of  voters  ? 
This  explanation  answers  the  attack  upon  the  Arbitrators'  Report, 
made  by  the  thirty-six  very  respectable  ladies  and  gentlemen  -who 
have  sworn  that  they  were  communicants,  or  pew-holders  at  the 
time  of  the  election  of  1868  and,  therefore,  entitled  to  vote. 
Their  testimony  amounts  only  to  this,  which  nobody  doubted  in 
their  cases,  that  they  believed  and  still  believe  themselves  entitled 
to  vote.  But  in  opposition  to  this,  you  have  the  solemn  finding  to 
the  contrary  of  the  Arbitrators,  the  persons  best  qualified  to  de- 
cide this  question,  for  they  had  in  their  custody  the  records  by 
which  alone  the  fact  of  membership  or  pew  tenantcy  could  be  proved. 
You  will  remember  also,  Gentlemen  of  the  Jury,  that  bu;  one  of 
these  thirty-six  witnesses  could  swear  positively  that  he  had 
paid  his  pew  rent  within  two  quarters  immediately  preceding 
the  election.  But  suppose  that  they  had  succeeded,  as  they  have 
not  succeeded,  in  proving  that  the  Arbitrators  were  mistaken  in 
the  cases  of  these  thirty-six,  what  becomes  of  the  remaining 
ninety-one  out  of  the  one  hundred  and  twenty-seven  that  the 
Arbitrators  found  not  entitled  to  vote?  Where  are  the  ninety-one? 
Many  of  them  never  could  be  found,  for  they  are  strangers  to 
this  Congregation,  people  who  had  never  been  known  as  pew- 
holders,  communicants,  or  attendants  upon  its  religious  services. 
How  absurd  is  it,  therefore,  to  talk  of  having  successfully  at- 
tacked the  Arbitrators'  Report,  when  they  have  been  able  to  pro- 
duce only  thirty-six  out  of  the  one  hundred  and  twenty-seven, 
and  when  they  have  not  succeeded,  in  the  cases  of  those  thirty- 
six,  in  establishing  anything  more  than  the  witnesses'  belief  in 
their  right  to  vote  ? 

But  the  Relators  say,  "  this  list  has  been  kept  back  for  three 
"years.  We  have  not  been  able  to  learn  the  names  it  contains, 
"until  it  was  read  in  evidence."  To  this  we  answer,  Dr.  McMur- 
ray  and  Mr.  Guy  were  members  of  Session,  and  were  present 
when  the  list  was  read.  They  heard  every  name.  The  Session 
in  the  Report  state  as  their  reason  for  not  making  the  list  public 
that  they  believe,  that  many  of  the  persons  whose  names  are  upon 
it  thought  themselves  entitled  to  vote,  and  that  for  the  purpose  of 
saving  the  feelings  of  those  persons  they  would  not  publish  it, 
but  that  they  were  ready  to  satisfy   any  legitimate  inquiry.     It 


15 

has  also  been  proved  to  you  that  it  'was  stated  to  the  Congrega- 
tion that  any  member,  on  application  to  the  Session  or  Board  of 
Trustees,  would  be  informed  whether  his  or  her  name  were  upon 
the  list. 

To  show  the  impartiality  with  which  the  Arbitrators  acted,  we 
call  your  attention  to  toe  fact  that  Mr.  George  H.  Stuart,  and 
the  other  gentlemen  who  took  the  most  active  part  in  the  examina- 
tion of  the  list  have  testified  that  they  did  not  in  the  case  of  any 
voter  inquire  for  whom  the  vote  had  been  cast.  Furthermore  it 
has  been  proved  that  two  or  three  of  the  rejected  voters  had 
voted  for  the  Defendants'  ticket,  and  one  of  those,  a  gentleman 
who  I  am  certain  believed  himself  fully  entitled  to  vote,  was  a 
nephew  and  partner  in  business  of  Mr.   George  H.  Stuart. 

Summing  up  then  the  evidence  with  regard  to  the  election  of 
1868,  it  appears  that  the  relators  had  a  majority  of  the  ballots 
cast,  but  that  the  question  of  the  validity  of  the  election  was  re- 
ferred to  the  Session  and  Board  of  Trustees  as  Arbitrators,  and 
that  those  Arbitrators  after  a  full,  fair  and  impartial  examination 
decided  the  election  to  be  invalid. 

Before  I  pass  the  history  of  the  election  of  1868  there  is  one 
matter  to  which  I  desire  briefly  to  call  your  attention.  It  has 
been  charged  that  at  the  meeting  of  the  Sixth  of  January,  1868, 
Mr.  George  H.  Stuart  introduced  certain  resolutions  relating  to 
the  Rev.  Dr.  Wylie,  and  for  the  purpose  of  delaying  the  election, 
made  a  long  speech  in  support  of  them.  Those  resolutions  have  been 
read  to  you.  They  recite,  that  during  the  past  year  various  efforts 
have  been  made  to  undermine  the  influence  of  the  pastor,  and 
they  express  in  the  name  of  the  Congregation  reprobation  of  such 
unworthy  attempts,  and  pledge  the  Congregation  to  the  continued 
support  of  their  pastor.  You  will  remember  that  it  has  been 
proved  that  Dr.  McMurray  had  so  far  forgotten  himself,  so  far 
forgotten  what  was  due  to  his  position  as  an  Elder,  lifted  up  above 
the  mass  of  the  Congregation  as  an  example  to  them,  and  as  a 
guardian  of  its  peace,  as  to  employ  his  time  and  energies  in  the 
work  of  distributing  among  the  Congregation  a  periodical,  "  The 
Reformed  Presbyterian  Advocate,"  which  frequently  contained 
attacks  upon  Dr.  Wylie  as  a  Minister  and  a  man.  Some  of  these 
attacks  have  been  read  in  your   hearing.     You  have  heard   from 


16 

them  that  Dr.  Wylie  is  a  hypocrite,  that  he  has  committed  theft, 
that  he  has  told  lies.  Yet  it  has  been  proved  that  Dr.  McMurray 
was  in  the  habit  of  directing  the  distribution  in  the  pews  of  the 
church  on  Sabbath  mornings,  of  copies  of  that  periodical  containing 
such  charges  against  the  pastor  who  was  to  conduct  the  religious 
services  of  their  sanctuary,  and  whom,  as  an  Elder,  he  was  bound  to 
uphold  and  assist.  Is  it  to  be  wondered  that  when  charges  of  so 
grave  a  character  were  being  circulated  among  the  Congregation,  not 
by  a  stranger,  not  by  a  private  member,  but  by  an  Elder,  that  Mr. 
Stuart,  as  a  life-long  friend  of  that  pastor  so  cruelly  maligned,  and 
as  an  Elder,  should  have  felt  it  to  have  been  his  duty  to  bring  the 
matter  to  the  attention  of  the  congregation,  in  order  that  they 
might  publicly  condemn  the  slanders  and  the  slander-mongers, 
and  might  testify  their  devotion  to  that  pastor,  who  had  devoted 
his  whole  life  to  their  service  and  who  had  brought  to  it  abilities 
and  a  strength  and  purity  of  character,  which  would  have 
achieved  for  him  eminence  in  any  secular  pursuit ;  that  pastor 
who  in  health  and  in  sickness  had  been  ever  with  them,  who 
for  twenty-seven  long  years  had  gone  in  and  out  among  them, 
who  had  stood  by  the  bedside  of  their  dying  friends  ever  ready 
to  say  those  words  of  hope  and  comfort  which  only  a  Minis- 
ter of  Christ  can,  and  who  when  the  shadows  of  sorrow  and  be- 
reavement had  fallen  on  their  homes  was  always  to  be  found  in 
the  midst  of  the  mourners,  consoling,  encouraging  and  comfort- 
ing them  ?  And  yet,  Gentlemen,  this  congregation  was  to  be  told, 
and  with  Dr.  McMurray's  approval ;  that  this  man  of  pure  and 
earnest  life  had  done  that  which  unfitted  him  for  the  society  of 
gentlemen  and  which  rendered  him  a  proper  inmate  for  a  prison, 
and  all  his  friends  in  the  Congregation  were  to  stand  by  and  let 
the  work  of  defamation  go  on,  under  penalty,  if  they  brought  the 
matter  to  the  attention  of  the  Congregation,  of  being  told  that 
they  were  conspiring  to  prevent  an  election.  I  tell  you,  Gentle- 
men, that  if  Mr.  Stuart  had  not  brought  that  matter  to  the  at- 
tention of  the  Congregation  he  would  have  been  recreant  to  his 
duty  as  an  Elder,  and  he  would  have  merited  the  condemnation 
of  all,  and  they  are  numberless  in  this  community,  who  respect  Dr. 
Wylie's  character. 

The  matter  was  brought  to  the  attention  of  the  Congregation. 
The  resolutions  were  moved  and  seconded.     Dr.  McMurray  very 


17 

naturally  moved  to  lay  them  on  the  table,  but  his  motion  was 
negatived  by  a  large  majority.  When  the  question  was  taken  on 
the  adoption  of  Mr.  Stuart's  motion,  it  was  carried  unanimously. 
No  one  of  the  Relators,  not  even  Dr.  McMurray  himself,  had  the 
courage  to  vote  against  it,  and  thus  go  on  the  record  as  sustain- 
ing; the  charges  of  "  The  Advocate." 

©  © 

Yet  we  are  to  be  gravely  told  that  Mr.  Stuart's  resolutions  and 
his  speech  in  support  of  them,  are  all  part  of  this  mysterious  con- 
spiracy to  deprive  the  Relators  of  their  rights.  It  needs  no  ar- 
gument to  convince  intelligent  men  of  the  absurdity  of  that. 
How  weak,  Gentlemen  of  the  Jury,  is  that  cause,  which  its  advo- 
cates are  compelled  to  bolster  up  with  charges  of  conspiracy  and 
fraud,  alleged  to  have  been  committed  by  gentlemen  of  Jiigh  cha- 
racter, and  which  charges  are  unsupported  by  proof  and  are  ut- 
terly untrue ! 

So  much  for  the  election  of  1868.  The  arbitrators  voluntarily 
selected  by  the  Congregation  having  decided  the  election  to  be 
invalid,  who  were  to  act  as  trustees  for  1868  and  as  such  to  have 
the  custody  of  the  property  of  the  Congregation?  Very  certainly 
not  either  of  the  parties  claiming  under  the  election  of  1868,  for 
the  arbitrators  had  conclusively  decided  that  election  to  be  in- 
valid, and  it  therefore  could  confer  no  rights  on  any  one.  Nothing 
was  left  therefore,  but  that  the  trustees  for  1867  should  hold  over, 
until  their  successors  were  legally  elected.  If  your  Honor  please, 
the  trustees  for  1867  were  not  only  in  point  of  law  entitled,  but  were 
bound,  to  hold  over.  I  refer  you  to  Angell  &  Ames  on  Corporations, 
PI.  143,  p.  109;  the  Queen  vs.  Durham,  10  Mod.  146;  Slee  vs. 
Bloom,  5  Johns.  Chanc.  378 ;  and  the  unreported  case  of  Ray  vs. 
Young,  one  of  the  branches  of  this  very  litigation,  in  which  Mr. 
Chief  Justice  Thompson  sitting  at  Nisi  Prius,  upon  the  hearing  of  a 
motion  for  an  injunction,  held  that  these  very  trustees  for  1867 
were  entitled  to  hold  over,  and  enjoined  the  Relators  from  inter- 
fering with  them  in  the  exercise  of  their  offices. 

You  will  remember  also,  Gentlemen  of  the  Jury,  that  two  of  the 
Relators,  Messrs.  E.  Young  and  James  Stewart,  were  members  of 
the  Board  for  1867,  and  could  have  remained  with  the  other  mem- 
bers in  possession  of  their  offices,  but  they  did  not  choose  so  to  do, 
and  that  they  thus  deprived  the  Relators  of  their  representation 
in  the  Board  is  certainly  not  the  fault  of  the  Defendants. 


18 

The  Relators  have  dragged  into  this  case  many  things  which  it 
would  have  been  better  for  them  and  better  for  the  cause  ot 
Christianity  if  they  had  left  out.  Several  of  the  Relators  have 
testified  that  at  the  meeting  of  13  February,  1868,  Mr.  George 
H.  Stuart  shook  his  fist  in  Mr.  Taylor's  face  and  threatened  to 
have  him  locked  up  in  Moyamensing,  if  he  had  money  enough  to 
do  it.  We  have  proved  to  you  by  the  testimony  of  Mr.  Stuart 
himself  and  by  many  other  witnesses  that  he  never  did  that  act 
nor  said  those  words.  The  Relators'  witnesses  have  also  devoted 
much  time  to  describing  the  occurrences  at  the  meeting  of  Session 
at  which  as  they  allege  Dr.  Wylie  threw  certain  papers  in  Mr. 
Young's  face.  You  heard  Mr.  Young's  testimony.  He  told  you 
that  Dr.  Wylie  threw  two  sheets  of  paper  partly  open  from  a  dis- 
tance of  four  feet ;  and  that  they  struck  him,  Mr.  Young,  in  the 
face  with  such  force  that  if  they  had  been  a  sword  they  would  have  cut 
off  his  head.  Why,  gentlemen,  the  thing  is  absurd.  It  carries  its 
contradiction  on  its  face.  No  man  can  throw  two  sheets  of  paper 
partly  open  four  feet ;  the  resistance  of  the  air  prevents  that.  Yet 
weak,  feeble  Mr.  Young  has  not  yet  recovered  from  the  blow. 
But  even  if  all  that  the  Relators  say  upon  these  points,  were,  as 
it  is  not,  true,  it  would  not  have  any  bearing  on  the  merits  of  the 
case  ;  it  would  not  help  you  in  determining  who  were  the  trustees 
of  this  Corporation  in  January,  1870.  Indeed,  gentlemen,  so  much 
irrelevant  matter  of  this  sort  has  been  brought  in,  so  many  un- 
founded charges  of  this  character  have  been  reiterated  and  com- 
mented upon  by  the  learned  Counsel  for  the  Relators,  that  their 
course  in  this  respect  compels  me  to  suppose  that  they  are  speak- 
ing from  a  brief  similar  to  that  with  which  the  Barrister  repre- 
senting the  plaintiff  in  an  action  in  Ireland,  is  said  to  have  been 
supplied,  and  which  ran  in  this  way: — "Plaintiff  has  no  case. 
Abuse  the  Defendants." 

I  come  in  the  next  place  to  consider  the  action  of  the  session  of 
this  Congregation  in  suspending  Dr.  McMurray  and  Mr.  Guy  from 
eldership.  The  relevancy  of  that  matter  to  the  issues  in  this  case 
is  this:  the  Charter  requires  that  the  trustees  shall  be  recognized 
by  the  Session;  Dr.  McMurray  and  Mr.  Guy  constitute  the  session 
of  the  Relators'  Congregation ;  if,  as  I  shall  show  you,  they  were 
rightly  suspended,  and  if  that  suspension  has  never  been  revoked, 


19 

the  Relators  have  not  been  recognized  by  any  session  and  conse- 
quently are  not  trustees.  The  facts  of  their  suspension  as  they 
have  been  proved  before  you  are  these :  they  were  charged  before 
the  Session  with  insubordination  and  certain  other  offences  which 
it  is  unnecessary  for  me  to  discuss.  A  committee  was  appointed, 
in  accordance  with  the  ecclesiastical  law  of  this  denomination,  to 
prepare  a  libel.  Pending  the  proceeding  the  accused  were  sus- 
pended from  office  and  membership  under  the  authority  of  the  fol- 
lowing provision  of  the  Book  of  Discipline  (Chap.  4,  Sec.  1,  §  2). 
"In  cases  of  public  scandal,  and  in  very  flagrant  cases  of  private 
"  scandal,  which  cannot  be  speedily  brought  to  trial,  it  is  proper 
"  to  suspend  the  accused  until  the  trial  comes  on  and  while  it  is 
"pending."  They  were,  therefore,  suspended  in  strict  accordance 
with  the  law  of  the  church.  But  the  Relators  say  that  the  Synod 
of  1868  reversed  the  decree  of  suspension,  and  they  refer  to  page 
42  of  the  Minutes  of  that  body,  on  which  the  decree  of  reversal  is 
set  forth.  We  admit  that  the  Synod  did  make  such  a  decree,  but 
we  answer  that  the  Synod  had  no  jurisdiction  of  the  case,  as  no 
appeal  had  been  taken,  and  that  in  no  one  of  the  papers  presented 
to  Synod  was  there  any  mention  of  the  suspension  of  these  gentle- 
men by  name. 

Mr.  Justice  Williams. — "Was  there  no  paper  presented  to 
"  Synod  explaining  the  action  of  Session  in  suspending  these  gen- 
"tlemen?" 

Mr.  Patterson. — "No,  sir.  None  at  all.  There  was  an  alleged 
"  copy  of  a  declinature  and  appeal  to  Presbytery,  but  there  was  no 
"  appeal  from  the  act  of  suspension." 

Mr.  Price. — "  The  declinature  took  place  before  this  proceed- 
"ing. 

Mr.  Justice  Williams. — "  This  suspension  was  a  precautionary 
"act." 

Mr.  Porter. — "  There  is  nothing  in  the  shape  of  an  appeal  re- 
"  lating  to  this  suspension.  There  never  was  an  appeal  or  a  sha- 
"  dow  of  an  appeal." 

Mr.  Price. — "  The  papers  that  were  refused  by  Dr.  McAuley 
"  were  the  appeals." 

Mr.  Patterson. — "  There  is  no  evidence  of  that." 
Mr.   Price. — "  On  page  53,  Minutes   of  Synod,  1868,  if  your 
"  Honor  please,  you  will  find  the  protest  and  appeal." 


20 

Mr.  Justice  Williams. — "I  do  not  see  that  they  complain  of  the 
"suspension." 

Mr.  Price. — "  It  is  mentioned  in  the  remonstrance,  page  49,  but 
"  no  names  are  given.  The  Report  of  the  Committee  on  Disci- 
"  pline,  page  42,  fills  in  the  names." 

Mr.  Justice  Williams. — "  The  point  Mr.  Patterson  makes  is 
"  that  the  Synod  was  not  informed  of  the  suspension  by  any  paper 
"  then  before  it." 

Mr.  Patterson. — "  If  your  Honor  please,  the  remonstrance  merely 
mentions  that  two,  among  the  oldest  members  of  session,  have  been 
tyrannically  subjected  to  the  unrighteous  sentence  of  suspension,  but 
the  names  are  nowhere  given.  I  say,  therefore,  with  all  confidence, 
that  any  information  the  members  of  Synod  had  in  regard  to  this  sus- 
pension could  only  have  been  derived  from  conversations  with  Messrs. 
Guy  and  McMurray,  or  with  other  parties.  But  even  if  the  remon- 
strance had  recited  the  suspension  with  all  particularity,  that  would 
not  have  had  the  effect  of  vesting  in  the  Synod  any  appellate  juris- 
diction in  the  matter,  for  the  remonstrance  is  a  mere  petition,  and 
is  not  one  of  the  modes  of  appeal  prescribed  by  the  laws  of  the 
church.  The  Book  of  Discipline,  chap.  3,  sec.  3,  §  4,  prescribes 
that  "  no  appeal  shall  be  admitted  unless  notice  is  given  to  the 
"judicatory,  before  which  the  case  is  tried,  at  or  before  the  defi- 
"  nite  sentence,  and  unless  the  appeal  is  delivered  in  writing  within 
"  two  weeks  after  the  party  aggrieved  shall  receive  notice  of  the 
"  sentence ;  unless  such  party  be  removed  to  such  a  distance,  or 
"  involved  in  such  circumstances  as  should  render  compliance  with 
"  this  rule  impossible."  §  3.  "  Any  one  concerned  in  a  trial,  may 
"decline  the  authority  of  a  judicatory,  which  undertakes  to  judge 
"  of  a  case  over  which  they  have  no  cognizance  or  which  acts  any 
"  way  illegally,  and,  in  such  cases,  a  written  declinature,  specify- 
"  ing  the  grounds  of  it,  is  to  be  laid  before  the  judicatory  ;  and  a 
"  copy  shall  be  presented  to  the  judicatory  to  which  the  reference 
is  made."  Messrs.  McMurray  and  Guy  attempted  to  decline  the 
authority  of  Session  and  appealed  to  the  Presbytery.  If  they  had 
proceeded  in  accordance  with  the  law  which  I  have  read  to  you 
they  would  have  removed  their  cases  to  the  Presbytery  and  thus 
prevented  any  further  action  on  the  part  of  the  Session. 

But  they  failed  to  furnish  the  Session  with   any  copy  of  their 


21 

appeal.  The  Session,  therefore,  never  lost  their  hold  on  those 
cases  and  the  Presbytery  never  acquired  jurisdiction  thereof. 
No  appeal  lies  from  the  Session  to  the  Synod,  except  through  the 
Presbytery.  If,  therefore,  Presbytery  never  acquired  jurisdic- 
tion, the  Synod  c»uld  take  none  by  appeal.  But  even  if  the  cases 
had  been  regularly  carried  up  to  Presbytery,  no  appeal  was  taken 
from  that  body  to  Synod,  for  no  paper  of  appeal  was  served  upon 
the  Presbytery.  The  Synod  not  having  acquired  jurisdiction  by 
appeal,  how  could  they  reverse  the  action  of  the  Session  ?  Sup- 
pose that  a  plaintiff  had  obtained  judgment  in  the  Common  Pleas 
of  this  County,  and  that  the  Defendant  without  taking  any  writ  of 
error,  or  bringing  up  the  record  for  review,  were  to  make  a  verbal 
statement  of  his  case  to  the  Court  of  last  resort,  and  that  that 
Court  were  thereupon  to  make  a  decree  reversing  the  lower  Court 
and  annulling  its  judgment,  would  any  lawyer  contend  that  that 
decree  of  reversal  would  be  of  any  efficacy  ? 

It  follows,  therefore,  that  Messrs.  McMurray  and  Guy  having 
been  suspended  from  their  Eldership  in  full  accordance  with  the 
law  of  the  church,  and  the  sentences  of  suspension  never  having 
been  legally  revoked,  they  are  not  now  Elders  of  the  Reformed 
Presbyterian  Church,  and  cannot  constitute  the  session  of  any 
Congregation.  It  is  to  be  noted  also  that  the  Book  of  Discipline 
Chap.  5,  Sec.  2,  prescribes  a  certain  definite  mode  for  the  re- 
storation of  suspended  church  officers ;  even  if  the  decree  of 
suspension  had  been  rightfully  revoked,  it  would  have  been  in- 
cumbent on  them  to  show  you  that  they  had  been  restored  to 
their  office  in  the  manner  directed  by  the  law  of  the  church. 

But  you  have  noticed,  throughout  the  whole  of  this  case,  that  the 
eyes  of  the  Relators  and  of  their  partisans  in  the  Synod  have  been 
judicially  blinded  to  such  an  extent,  that  they  have  seemed  in  all 
their  proceedings  to  have  deliberately  set  themselves  to  the  work  of 
trampling  upon,  and  defying  their  own  organic  law. 

The  next  point,  Gentlemen,  in  the  history  of  this  case  is  the 
action  which  was  taken  by  the  Reformed  Presbytery  of  Philadel- 
phia, on  the  14th  May,  1868.  On  that  day  the  Presbytery  ap- 
pointed, as  a  Commission,  "  to  investigate  the  difficulties  existing 
'•  in  the  First  Church  with  a  view  if  possible  to  restore  peace  and 


22 

"harmony,"  Rev.  Dr.  McAuley,  Rev.  Dr.  Sterrett  and  Mr. 
Alexander  Kerr.  You  will  remember,  that  Mr.  Kerr  has  been 
examined  here  as  a  witness  for  the  Relators.  No  one  will  deny 
that  he  is,  as  he  has  been  from  the  beginning  of  the  difficulties  in 
the  church,  an  ardent  sympathizer  with,  and  str'ong  adherent  of 
the  Relators'  cause.  For  that  very  reason,  the  Presbytery  ap- 
pointed him  a  member  of  this  Commission.  They  were  desirous 
to  give  the  Relators  a  representative  on  the  Commission.  In  the 
same  way,  Gentlemen,  as  has  been  proved,  the  Session  and  Board 
of  Trustees,  were  careful  to  appoint  Messrs.  Guy  and  Stewart, 
adherents  of  the  Relators,  on  the  respective  sub-Committees  who 
were  charged  with  the  duty  of  making  the  preliminary  examina- 
tion of  the  list  of  voters.  In  every  instance  where  a  body,  the 
majority  of  which  consisted  of  the  Defendants'  friends,  had  to  ap- 
point a  committee  to  perform  any  duty  of  a  judicial  character, 
they  were  careful  to  give  the  Relators  representatives  on  such 
Committees.  Contrast  that  with  the  action  of  the  Synod  in  1868. 
Their  Committee  on  Discipline,  to  whom  were  to  be  referred  the 
papers  relating  to  the  difficulties  in  this  Congregation,  and  who 
were  expected  to  initiate  the  ecclesiastical  war  against  the  De- 
fendants ;  their  Synodical  Commission,  who  were  to  be  sent  to 
this  City  to  expel  the  Defendants  and  their  friends  from  the 
Church  they  had  built,  and  to  establish  the  Relators'  party  in  the 
exclusive  possession  of  it,  were  both  carefully  packed  with 
members  whose  action,  as  the  Minutes  of  Synod  attest,  had  left 
no  doubt  as  to  their  partisanship  with  the  Relators. 

To  return  to  the  Presbyterial  Commission.  We  have  read  you 
the  Minutes  of  that  body.  We  bave  shown  you  that  they  or- 
ganized with  great  promptitude,  and  met  on  the  18th  of  May 
1868,  to  perform  the  duties  imposed  upon  them.  All  the  members 
including  Mr.  Kerr,  were  present.  They  had  notified  the  parties 
in  interest  to  appear  before  them.  The  members  of  the  Board  of 
Trustees  for  1867,  holding  over,  together  with  many  of  the  pro- 
minent adherents  of  the  Defendants'  party,  and  Messrs.  James 
Stewart  aud  Biggerstaff,  two  of  the  Relators,  appeared  before  the 
Commission.  After  hearing  statements  in  relation  to  the  pending 
difficulties  from  several  of  the  parties,  the  Commission  adjourned 
to  meet  at  the  call  of  the  chairman.     We   have   shown  you  also, 


23 

that  further  action  on  the  part  of  that  Commission  was  pre- 
vented by  the  action  of  the  Synod  of  1868  in  the  appointment 
of  their  Synodical  Commission,  by  the  proceedings  of  that  Com- 
mission, and  by  the  subsequent  withdrawal  of  the  Relators' 
party  from  the  Congregation.  But  the  importance  to  this  case 
of  that  action  of  the  Presbytery  and  its  Commission,  is  this,  that 
it  shows  that  the  Presbytery  had  acquired  jurisdiction  of  the  dif- 
ficulties existing  in  this  congregation,  prior  to  the  meeting  of 
Synod  in  1868,  and  as  I  shall  show  you  presently,  it  necessarily 
follows  therefrom  that  the  Synod  had  no  jurisdiction  of  those 
difficulties,  and,  therefore,  could  not  confer  jurisdiction  upon  the 
Synodical  Commission,  whose  whole  procedings  are,  for  that  rea- 
son, coram  non  judice,  and,  therefore,  void. 

Now  we  come  to  the  meeting  of  the  Synod,  which  convened  in 
Pittsburgh  20th  May,  1868.  Before  we  consider  these  ecclesiasti- 
cal proceedings,  let  me  remind  you  that  we  have  not  brought  them 
into  this  case.  We  contended  and  still  contend  that  they  are  al- 
together irrelevant  to  the  issues  in  this  cause,  and  we,  therefore, 
opposed  their  introduction ;  but  the  Relators  have  dragged  them 
in  here  with  the  intention  of  fettering  your  hands,  and  restricting 
your  action  in  this  case  and  compelling  the  Court  and  you,  Gen- 
tlemen, to  do  nothing  more  than  to  register  the  Synodical  decree 
pronounced  in  defiance  of  the  plainest  principles  of  justice,  and 
in  violation  of  their  own  law,  without  hearing  or  trial,  in  a  cause 
of  which  they  had  not  jurisdiction.  The  Relators  expect,  Gen- 
tlemen, that  you  will  blindly  follow  that  decree,  and  that  in  so 
doing,  you  will  deprive  us  of  rights,  for  the  preservation  of  which 
we  have  the  guarantee  of  the  Constitution,  and  the  laws  of  this 
great  Commonwealth. 

The  Relators  and  their  party  appealed  to  that  Synod  of  1868, 
by  a  very  cnrious  paper,  which  they  call  a  "remonstrance,"  which 
gives,  to  characterize  it  mildly,  a  very  inaccurate  and  mistaken 
statement  of  the  difficulties  in  the  congregation.  Dr.  McMurray 
has  testified  that  that  paper,  was  the  result  of  the  conjoined  liter- 
ary efforts  of  himself,  and  the  Rev.  Dr.  Steele,  the  pastor  of 
another  Congregation  in  this  denomination,  and  the  Moderator  of 
the  very  Synod,  to  which  the  "  remonstrance "  was  presented. 
We  have  contradicted   every  material  averment    of   that  paper, 


24 

and  we  have  produced  before  you  many  of  the  persons,  whose 
names  were  affixed  to  it ;  most  of  them  have  testified,  that  they 
never  saw  the  document,  but  that  they  were  told,  that  it  was  de- 
sired to  obtain  the  names  of  those  who  were  in  favor  of  the  old 
Psalms,  and  opposed  to  the  introduction  of  Hymns.  Others  of 
them  have  testified  that  they  never  authorized  their  names  to  be 
put  to  it,  nor  signed  it.  It  is  unfortunate  for  the  Synod,  that  the 
only  basis  on  which  they  can  found  their  intervention  in  this 
matter,  is  a  paper,  many  of  the  signatures  to  which,  were  obtained 
by  false  representations  and  most  of  the  statements  contained  in 
which  are  untrue. 

That  Synod  of  18G8,  did  many  curious  acts.  First ;  it  re- 
versed the  suspension  of  Messrs.  Guy  and  McMurray.  I  have 
already  shown  you  that  it  had  no  jurisdiction  of  their  cases  and 
that  its  decree  of  reversal  is  a  nullity.  Secondly  ;  it  reversed 
the  decision  of  the  Session  and  Board  of  Trustees  of  this  Con- 
gregation, in  deciding,  as  Arbitrators,  upon  the  invalidity  of  the 
election  of  1868.  Now  it  needs  no  argument  to  prove  that  the 
Synod  had  no  jurisdiction  to  decide  upon  any  appeal  from  the 
Board  of  Trustees,  who  are  not  an  ecclesiastical  body.  The 
Synod  might  as  well  pretend  to  entertain  an  appeal  from  the  de- 
cision of  his  Honor,  Mr.  Justice  Williams,  sitting  at  Nisi  Prius. 
Nor  is  their  case  a  whit  stronger  as  regards  the  Session,  for  in  the 
examination  of  the  list  of  voters,  the  Session  were  acting,  not  in 
the  exercise  of  their  ecclesiastical  jurisdiction,  but  as  a  tribunal 
pro  hac  vice,  as  Arbitrators,  to  whom,  conjointly  with  the  Trus- 
tees, and  to  which  bodies  alone,  the  Congregation  had  referred  the 
matter.  Let  me  illustrate  this  to  your  Honor.  Certain  acts  of 
assembly  have  charged  the  Court  of  Common  Pleas  of  this 
County  with  the  duty  of  appointing  certain  public  officers,  such, 
for  instance,  as  the  Commissioners  of  Fairmount  Park.  Now 
suppose  that,  which  is  certainly  not  the  case,  the  learned  Judges 
of  that  Court  had  made  an  improper  use  of  that  power,  and 
had  appointed  notoriously  unfit  persons,  will  any  one  say  that 
their  action  in  that  case  would  have  been  subject  to  review  upon- 
appeal  taken  to  the  Supreme  Court,  which  holds  to  the  Common 
Pleas,  precisely  the  relation  in  which,  as  the  Relators  contend,  the 
Synod  stands  to  the   Session  ?  Certainly  not ;  and  the  reason  is 


25 

that  the  Common  Pleas  in  performing  that  duty  are  acting  not  by 
virtue  of  their  ordinary  jurisdiction  but  in  pursuance  of  the  spe- 
cial authority  conferred  upon  them,  and  in  the  absence  of  any 
provision  for  an  appeal  from  their  action.  Yet  the  Synod  were 
so  impressed  with  a  belief  in  their  own  omnipotence  that  they 
actually  undertook  to  reverse  the  action  of  these  Arbitrators. 

In  the  third  place,  the  Synod,  perhaps  having  been  informed 
.that  the  Relators  had  suffered  from  the  effects  of  an  injunction 
which  had  been  granted  against  them,  and  being,  therefore,  fully 
persuaded  of  the  efficacious  nature  of  that  remedy,  gravely  en- 
joined the  Reformed  Presbytery  of  Philadelphia  and  the  Session 
of  the  First  Church  from  exercising  judicial  functions  in  relation 
to  the  pending  difficulties  in  the  Congregation.  Your  Honor  will 
find  that  there  is  absolutely  no  warrant  in  the  law  of  the  church 
for  any  exercise  by  the  Synod  or  any  other  judicatory  of  this 
power  of  injunction. 

In  the  fourth  place,  comes  the  action  in  the  case  of  Mr.  George 
II.  Stuart.  Our  learned  opponents,  Gentlemen  of  the  Jury,  accuse 
us  of  dragging  this  matter  into  the  case  for  the  purpose  of  influ- 
encing your  sympathies  and  perverting  your  judgment.  I  repel 
that  charge.  I  am  confident  of  the  justice  of  the  Defendants'  case. 
I  am  confident  that  the  facts  and  the  law  are  on  their  side,  and  that 
they  need  to  arouse  no  man's  sympathies.  You  will  remember, 
that  the  Relators  rely,  as  an  important  part  of  their  case, 
upon  the  action  of  the  Presbytery  in  suspending  its  relations 
to  the  Synod.  For  the  purpose  of  showing  that,  they  attempted  to 
give  in  evidence  one  of  the  series  of  resolutions  which  were  adopted 
by  Presbytery  on  12th  of  June,  1868.  We  objected.  We  said, 
"  We  must  have  the  whole  record,  or  no  part  of  it."  Under  that 
objection  they  were  forced  to  give  in  evidence  all  the  resolutions 
which  the  Presbytery  adopted  on  that  subject.  Those  resolutions 
recite,  as  one  of  the  impelling  causes  of  the  suspension  of  relations 
the  action  of  the  Synod  with  regard  to  Mr.  Stuart,  and  they  char- 
acterize that  action  in  the  terms  of  indignant  reprobation  in  which 
alone  it  can  be  truly  described.  I  assure  you,  Gentlemen,  it  gave 
me  great  pleasure  to  hear  that  zealous  advocate  of  the  Synod, 
Mr.  Price,  read  to  you  in  his  most  convincing  manner  that 
clear  and  unanswerable   condemnation  of    the  Synod  which  the 


26 

Presbytery  have  put  on  record.  But  the  Presbyterial  record  is 
not  evidence  of  the  facts  asserted  in  it.  It  was,  therefore,  ne- 
cessary for  us  to  support  that  record  by  proving  to  you  as  a  fact 
that  the  Synod  had  suspended  Mr.  Stuart  from  membership  and 
eldership,  and  also  for  the  purpose  of  explaining  and  justifyiug 
the  action  of  the  Presbytery,  to  show  you  the  manner  of  and  ag- 
gravating circumstances  attending  that  persecution  of  Mr.  Stuart. 
These  reasons  make  it  clear  to  you  that  this  evidence  is  necessary 
to  our  case. 

The  facts  in  Mr.  Stuart's  case  are  briefly  these.  The  Synod 
suspended  him  from  office  and  membership,  without  hearing  or  trial, 
when  he  was  absent  and  sick,  and  for  the  alleged  commission  of 
that  which  was  for  the  first  time  authoritatively  declared  to  be  an 
infraction  of  the  laws  of  the  church. 

Mr.  Stuart  was  accused  of  a  double  crime ;  first,  singing  hymns, 
not  in  the  religious  services  of  his  own  church,  but  in  the  services 
of  other  Christian  churches;  and,  secondly,  in  communing  with 
other  churches  in  sealing  ordinances,  which  I  understand  to  mean 
partaking  of  the  Sacrament  of  the  Holy  Communion.  I  shall 
not  take  up  your  time  with  the  argument  of  the  question,  whether 
or  not  these  alleged  crimes  are  forbidden  by  the  proper  construc- 
tion of  the  law  of  the  Reformed  Presbyterian  Church.  I  shall 
content  myself  with  denying  that  they  are  so  forbidden,  and  shall 
support  my  view  of  the  matter,  with  the  eminent  authority  of  the 
Rev.  Dr.  McLeod,  of  New  York,  who  has  put  upon  the  records  of 
the  Synod  of  1868,  over  his  own  signature,  his  declaration,  that 
"  the  paper  adopted,"  in  the  case  of  Mr.  Stuart,  "  gives  to  the 
standards  of  the  Reformed  Presbyterian  Church,  on  the  subject  of 
Psalmody  and  ecclesiastical  communion,  an  unduly  restricted  and 
impracticable  construction."  But  even  if  Mr.  Stuart  had  broken 
the  laws  of  the  church,  he  was  entitled  to  be  tried  before  being 
convicted.  This  is  "  the  do°r's  ri^ht,"  for  which  the  learned  At- 
torney-General  contended  so  eloquently  in  another  aspect  of  this 
case.  The  law  of  the  Reformed  Presbyterian  Church,  as  found  in 
the  second  section  of  the  third  chapter  of  the  Book  of  Discipline, 
is  very  clear  upon  this  point.  The  mode  of  trial,  the  necessity  for 
a  distinct  libel,  specifying  the  time  and  place  of  the  offense,  the 
duty  of  giving  sufficient  notice   to  the  accused,  and  of  allowing 


J 


27 

him  sufficient  time  to  prepare  for  trial,  are  all  laid  clown  there  with 
the  utmost  clearness,  evidently  with  the  most  anxious  desire  to 
guard  the  rights  of  the  individual  members  and  officers  of  the 
church,  and  to  prevent  the  perpetration  of  such  an  act  of  gross 
injustice,  as  was  done  in  Mr.  Stuart's  case.  Yet  in  deBance  of 
that  law,  which,  as  his  Honor  will  tell  you,  was  and  is  as  binding  on 
that  synod  as  upon  the  humblest  member  of  the  church,  the  synod, 
without  a  libel,  without  a  distinct  statement  of  the  charge,  by  a 
mere  legislative  resolution,  upon  which  the  vote  was  taken,  when 
Mr.  Stuart  was  absent,  when,  as  every  member  of  synod  knew,  he 
was  too  ill  to  be  present,  undertook  to  cast  him  forth  as  unworthy 
to  hold  communion  with  the  enlightened  Christians  who  consti- 
tuted the  synod. 

But,  gentlemen,  even  if  the  synod  had  tried  him  in  accordance 
with  their  own  law,  the  sentence  of  suspension  would  have  been 
void,  for  they  had  no  jurisdiction  of  the  case.  The  Book  of  Disci- 
pline prescribes  (Chap.  3,  sec.  2)  ;  the  Presbytery  in  the  case  of 
ministers  and  the  session  in  every  other  case,  as  the  competent  court, 
and  vests  original  jurisdiction  in  the  superior  judicatory  only  when 
the  inferior  judicatories  are  remiss  in  the  exercise  of  discipline,  or 
otherwise  incapable  of  applying  a  remedy  to  an  open  scandal. 
The  session  was  therefore  the  proper  Court  to  try  Mr.  Stuart,  and 
the  synod  had  no  jurisdiction. 

Now,  the  great  importance  of  that  action  to  this  case  is 
this ;  if  the  Synod  could  be  permitted  to  suspend  from  office 
or  from  membership  a  member  of  the  church,  and  that  without 
hearing  or  trial,  and  for  an  alleged  offence  not  forbidden  by  the 
law  of  the  church,  it  necessarily  follows  that  the  rights  of  the 
whole  membership  were  at  the  mercy  of  the  Synod,  for  if  they 
might  suspend  one  man,  they  might  suspend  another  or  ten  or 
twenty  more.  In  other  words,  that  single  act  revolutionized  the 
whole  system  of  their  church  government.  It  converted  the  Re- 
formed Presbyterian  Church  from  a  republic,  in  which  the  rights 
of  all  the  members  were  safely  guarded  by  the  organic  law  of  the 
body,  into  an  absolute  despotism  under  whose  iron  rule  no  member, 
Session,  or  Presbytery,  had  any  rights  which  the  Synod  were 
bound  to  respect.  Will  you  tell  me,  therefore,  that  this  Presby- 
tery and  this  Congregation  were  to  bow  in  meek  submission  to  this 


28 

tyrannical  usurpation  on  the  part  of  the  Synod  ?  Will  you  not 
rather  tell  me,  that  the  Presbytery  were  bound  by  their  duty  to 
the  Congregations  which  they  represented,  and  by  their  paramount 
obedience  to  the  law  of  their  church,  to  take  such  action  as  would 
effectually  protect  the  rights  of  the  individual  members  of  the 
church  and  teach  this  usurping  Synod  the  limits  of  its  power  ? 

But  this  was  not  the  only  act  of  usurpation  committed  by 
that  Synod.  They  appointed  a  Commission,  to  whom  they  re- 
ferred the  whole  matter  pertaining  to  the  difficulties  then  ex- 
isting in  this  Congregation,  whom  they  clothed  with  synodical 
powers,  authorized  to  issue  the  whole  case,  and  directed  to  meet 
in  the  church  on  a  certain  day  designated.  But  the  Synod  had 
no  jurisdiction  of  those  existing  difficulties,  and,  therefore,  could 
confer  none  upon  their  Commission.  They  had  not  original  juris- 
diction, for,  as  I  have  already  shown  you,  their  own  law  gives 
them  such  jurisdiction  only  in  case  of  "remissness"  on  the 
part  of  the  lower  judicatories.  But  the  jurisdiction  of  the  Re- 
formed Presbytery  of  Philadelphia  had  already  attached.  There 
had  been  no  "remissness  "  on  their  part,  for,  as  has  been  proved, 
that  body  had,  within  two  days  after  the  matter  had  been  brought 
to  their  attention,  appointed  a  Commission,  who,  four  clays  after- 
wards, entered  upon  the  judicial  investigation  of  the  matter.  Nor 
had  the  Synod  appellate  jurisdiction.  No  appeal  was  taken  from 
the  action  of  the  Presbytery.  It  is  idle  to  say  that  that  "  remon- 
strance "  vested  in  the  Synod  any  jurisdiction  which  the  laws  of 
their  church  did  not  confer  upon  them.  As  well  might  it  be 
said,  that  the  Congress  of  the  United  States  could  find  a  warrant 
for  its  enactment  of  an  unconstitutional  law  in  the  fact  that  cer- 
tain citizens  had  petitioned  them  to  pass  such  an  act.  I  do  not 
impugn  the  right  of  petition.  I  admit  that  the  few  persons  who 
signed  the  remonstrance  in  good  faith  had  an  undoubted  right  to 
petition  the  Synod.  But  I  do  contend  that  no  such  petition  could 
authorize  the  Synod  to  do  that  which  they  could  not  have  done  in 
the  absence  of  any  petition.  The  appointment  of  the  synodical 
Commission  was  therefore  a  nullity. 

The  Synod  adjourned  on  the  29th  May.  On  the  12th  June 
following,  the  Reformed  Presbytery  of  Philadelphia  met,  and 
adopted  that  action,  which  the  Relators  have  falsely  stigmatized  as 


29 

a  secession  from  the  Church,  and  upon  the  perversion  of  which 
they  build  all  their  hopes  in  this  case.  That  action  has  been 
read  to  you.  You  have  remarked  the  calm,  dignified,  almost 
judicial  tone  of  the  Presbyterial  Resolutions.  You  have  observed, 
that,  so  far  from  pronouncing  an  act  of  secession,  the  Presbytery, 
on  the  contrary,  expressed  a  firm  determination  "  to  remain  in 
the  Reformed  Presbyterian  Church,  maintaining  her'  organiza- 
tion, and  endeavoring  to  develop  and  apply  her  principles  in  their 
proper  application  to  the  age  and  country  in  which  we  live." 

On  the  17th  of  June,  1868,  the  Synodical  Commission  met  in 
this  City.  Our  learned  opponents  have  endeavored  to  make 
some  capital  out  of  the  refusal  of  the  Trustees  in  possession,  to 
permit  the  Commission  to  meet  in  the  Church.  They  had  very 
sound  reasons  for  that  refusal.  Firstly,  the  Commission  was,  as 
I  have  shown  you,  illegally  appointed.  No  man,  therefore,  was 
bound  to  recognize  it  or  obey  its  pretended  authority.  Secondly, 
the  Trustees  in  possession,  had  had,  by  that  time,  good  cause  to 
dread  the  lawless  and  turbulent  disposition  of  the  Relators  and 
their  clerical  partisans.  They  apprehended,  and  with  much  rea- 
son, that  if  that  Commission  were  once  permitted  to  sit  in  the 
Church  building,  they  would  not  leave  it,  until  they  had,  in  defi- 
ance of  law  and  justice,  established  the  Relators  in  the  possession 
of  the  building.  Ah,  gentlemen,  the  Trustees  in  possession  knew 
too  much  to  trust  that  Commission. 

The  Commission,  failing  to  get  into  the  First  Church,  met  in 
the  more  congenial  atmosphere  of  Dr.  Steele's  church.  What  did 
they  do  ?  They  certainly  did  not  pursue  the  Synodical  grant  of 
authority.  They  did  not  confine  themselves  to  the  consideration 
of  the  difficulties  existing  in  the  First  Church,  the  matter  over 
which  alone,  the  Synod  had  given  them  jurisdiction.  They  were 
informed  of  the  action  of  the  Presbytery  in  suspending  relations, 
and  the  knowledge  of  that  fact  had  on  those  venerable  clergymen 
and  elders,  very  much  the  influence,  which  a  red  flag,  when 
flaunted  before  his  eyes,  exercises  upon  a  bull.  It  infuriated 
them.     They  then  proceeded  to  do  what  ? 

To  punish  the  members  of  Presbytery,  who  had  taken  the  ob- 
noxious action,    and  over  whom    as    ecclesiastical  officers,   they 


30 

might  have  had  some  slim  pretence  of  jurisdiction  ?  No.  They 
proceeded  to  punish  the  innocent  corporators  of  the  First  Church 
adhering  to  the  Defendants,  who  had  knqwn  nothing  of  the  Pres- 
byterial  action  until  after  it  had  been  adopted,  and  who,  if  they 
had  known  of  it,  had  no  power  to  prevent  it.  And  how  did  tiny 
attempt  to  punish  them  ?  By  doing  that  which  no  body  of  Eccle- 
siastics, no  Synod,  nor  General  Assembly  will  ever,  in  this  coun- 
try, at  least,  be  permitted  to  do — by  taking  away  from  them  their 
property,  their  franchises,  as  members  of  this  Corporation,  their 
interest  in  this  valuable  church  which  has  been  built  mainly  with 
their  money.  And  more  than  all,  this  Commission  had  cited  be- 
fore them,  as  is  proven  by  their  own  records,  only  seven  of  the 
four  hundred  Corporators,  whose  property  they  attempted  to  con- 
fiscate. They  had  thus  committed  a  great  crime,  which  no 
Court  of  justice  will  tolerate,  and  no  Judge,  sitting  to  administer 
the  laws  of  this  land,  will  ever  condone. 

On  or  about  the  1st  July,  1868,  the  Relators  and  their  adher- 
ents, in  number  about  two  hundred  and  eighty  persons,  disregard- 
ing, I  am  very  certain,  the  sound  advice  which  they  must  have 
received  from  their  able  and  learned  counsel,  and  following  the 
blind  guides  to  whose  leading  the  Synod  had  committed  them,  vol- 
untarily seceded  from  the  Corporation  in  possession  of  the  Church. 
From  that  day  to  this  the  Relators  have  had  a  separate  and  inde- 
pendent congregational  organization.  They  have  held  their  stated 
religious  services  and  their  Congregational  Meetings  first  in 
the  Old,  and  afterwards  in  the  New  Horticultural  Hall,  where,  I 
trust,  they  will  remain  until  they  build  a  Church  of  their  own. 
They  have  also  called  and  settled  a  Pastor,  the  Rev.  A.  Gifford 
Wylie,  altogether  overlooking  the  fact  that  the  Rev.  Dr.  T.  W. 
J.  Wylie  is,  as  he  has  been  for  seventeen  years  past,  the  sole  pastor 
of  the  Congregation  of  which  the  Relators  claim  to  be  the  Trustees, 
and  of  which  their  electors  allege  themselves  to  be  the  constituent 
members.  In  that  secession  the  Relators'  party  made  the  same 
mistake  that  the  Southern  States  made  in  1861,  and  this  minia- 
ture secession  has  been  followed  by  consequences  very  similar  in 
character. 

My  learned  friends,  the  Counsel  for  the  Relators,  will  readily 
concede,  that  up  to  the  time  of  that  secession  there  was   a   fully 


31 

organized  Corporation,  possessing  all  the  attributes  of  corporate 
life  in  possession  of  the  Church-building.  They  will  also  admit 
that  the  Relators  carried  off  with  them  a  minority  of  the  Corpora- 
tion, and  that  they  left  the  majority  in  possession.  The  figures 
are  fixed  by  the  testimony,  as  follows  :  about  two  hundred  and 
forty  seceding  with  the  Relators  and  about  four  hundred  and 
thirty  remaining  with  the  Defendants.  The  evidence  also  is  clear 
and  conclusive  that  that  secession  was  voluntary.  They  with- 
drew of  their  own  motion,  and  the  doors  have  ever  since  been 
open  to  them  to  return. 

Now,  if  your  Honor  please,  what  is  the  effect,  in  point  of  law, 
upon  the  Relators'  rights  in  this  case,  of  their  voluntary  with- 
drawal and  abandonment  of  the  Corporation  ?  The  Corporation 
certainly  received  a  severe  blow  when  it  was  deprived  of  Dr.  Mc- 
Murray  and  the  Relators  in  this  case  ;  but  did  it  die  ? 

(The  hour  of  three  o'clock  having  arrived,  the  Court  adjourned 
for  the  day.) 


Tuesday,  April  4,  1871. 

After  the  opening  of  the  Court.  Mr.  Patterson,  in  continuing 
the  argument  for  the  defendants,  said  : 

"  May  it  please  your  Honor,  gentlemen  of  the  jury: — At  the 
adjournment  of  the  Court  yesterday,  I  was  engaged  in  discussing 
the  effect  of  the  withdrawal  of  the  relators'  party  from  the  con- 
gregation in  July,  1868.  I  had  called  your  attention  to  the  fact, 
which  is  uncontradicted,  that  that  withdrawal  was  voluntary, 
and  that  from  that  time  to  the  present  day,  the  relators  have 
been  excluded  from  the  church  only  by  their  own  action. 
You  will  remember,  also,  that  we  have  proved  to  you,  by  the 
testimony  of  Dr.  Wylie,  that  since  that  time  the  relators  have  not 
been  members  in  ecclesiastical  communion  with  the  congregation  ; 
and,  by  the  testimony  of  Mr.  Johnston,  who  has  kept  the  pew- 
books,  that  since  that  time  they  have  not  been  pew-holders ;  their 
pews,  after  their  voluntary  abandonment  of  them,  having  been 


32 

rented  to  and  occupied  by  others.  We  have  also  shown  you  that 
the  relators  have  since  then  made  no  claim  to  the  possession  of 
those  pews,  nor  have  they  attempted  to  exercise  the  privileges  of 
communicants  in  the  congr elation. 

Now,  if  your  Honor  please,  what,  in  point  of  law,  is  the  effect 
of  all  this  ?  It  is  clear,  as  I  stated  to  you  yesterday,  that,  up  to 
the  time  of  the  relators'  withdrawal,  there  was  a  fully  organized 
corporation  in  possession  of  the  church  building.  After  that  with- 
drawal did  the  corporation  die?  I  submit  that  it  did  not;  but  that, 
on  the  contrary,  it  continued  in  the  full  enjoyment  of  corporate  life. 
On  this  point  I  beg  to  refer  you  to  Angell  and  Ames  on  Corpora- 
tions, pi.  104,  p.  163;  Baker  vs.  Fales,  16  Mass.  488.  In  this 
last  case,  the  facts  were  that  a  minority  of  a  congregation  in 
Dedham  seceded,  as  the  relators  have  done  in  this  case,  and 
the  deacons  elected  by  them  brought  replevin  against  the  deacons 
elected  by  the  congregation  in  possession,  to  recover  the  commu- 
nion service  of  plate.  The  Court  held  that  the  plaintiffs  could 
not  recover;  for,  by  their  voluntary  withdrawal,  they  had  forfeited 
their  rights  as  corporators.  If  that  case  correctly  enunciates  the 
law,  and  that  it  does  so  I  am  confident,  it  is  fatal  to  the  relators' 
recovery  in  this  case. 

Let  me  put  this  in  the  form  of  a  logical  dilemma.  Either  the 
relators  are  members  of  the  corporation  or  they  are  not.  If  they 
are  not,  they  are  strangers  to  the  corporation,  and  cannot  maintain 
quo  warranto.  Wilcock  On  Corporations,  pi.  412 ;  Rex  vs.  Grant, 
11  Mod.  299  ;  Rex  vs.  Stacey,  1  I.  R.  3 ;  Commwth.  vs.  Cluley, 
6  P.  F.  Sm.  270.  If  they  are  members  of  the  corporation,  they 
are  bound  by  the  defendants'  election,  which  was  held,  after  due 
notice,  in  the  place  directed  by  the  charter,  and  at  Avhich  place 
only  their  partisans  should  have  offered  their  votes,  if  they  desired 
to  elect  the  relators. 

If  your  Honor  please,  the  facts  with  regard  to  the  elections 
of  1869  and  1870  are  not  in  dispute.  The  relators'  party  were, 
during  those  two  years,  worshipping  in  the  New  Horticultural 
Hall,  but  they  held  their  annual  corporate  elections  in  the  Old 
Horticultural  Hall.  The  defendants  held  their  elections  in  the 
church.  The  charter  which  the  relators  have  set  out  in  full  in 
their  suggestion,  and  upon  which  they  profess  to  rely,  gives  very 


33 

clear  and  explicit  directions  as  to  the  corporate  elections.     It  pro- 
vides, 

1st.  That  two  week's  previous  notice  of  the  election  shall  be 
given  from  the  pulpit,  which,  of  course,  means  the  pulpit  in  the 
church. 

2d.   The  election  shall  be  by  ballot,  in  the  church. 

3d.  That  the  persons  capable  of  electing  shall  be  all  who  are  in 
full  communion  with  the  congregation,  as  well  as  all  pew-holder', 
though  not  in  full  communion. 

4th.  That  the  Trustees  elect  shall  be  recognized  by  the  Session 
of  this  congregation  as  being  in  full  communion  with  this  church. 

"Such  is  the  organic  law  of  this  congregation,  by  which,  as  a 
test,  your  Honor  is  to  decide  whether  the  Relators  or  the  Defen- 
dants are  the  lawfully  elected  Trustees  of  this  congregation  for 
the  year  1870.  I  say  for  the  year  1870  only,  for  the  titles  of  the 
Trustees  for  the  year  1869,  are  not  put  in  issue  by  the  pleadings 
in  this  cause.  It  is  true  that  the  Relators  brought  this  action  in 
October,  1869,  to  try  the  titles  of  the  Trustees  for  that  year,  but 
subsequently  against  our  protest,  they  struck  out  the  names  of 
some  of  the  Defendants,  substituting  others  for  them,  and  so 
amended  the  records  as  to  put  in  issue  the  titles  of  the  Trustees 
for  1870.  I  put  it  to  your  Honor,  are  you  going  to  adjudicate 
,upon  the  rights  of  those  Trustees  for  1869,  whose  names  have  been 
stricken  from  the  records  and  who  are  not  parties  to  this  pro- 
ceeding ?  Are  you  going  to  try  their  titles  in  their  absence  ?  I 
am  sure  that  you  will  not,  and  that  you  will  therefore  disregard 
everything  that  relates  to  the  elections  of  1868  and  1869,  and  that 
you  will  try  only  the  issues  raised  by  the  pleadings,  which  relate 
solely  to  the  election  of  1870,  and  to  the  right  of  the  Relators  to 
maintain  this  action. 

"  If  the  elections  of  1870,  at  which  the  Relators  and  Defendants 
were  respectively  chosen,  be  tested  by  the  charter  provisions  to 
which  I  have  referred  your  Honor,  you  will  find  that  while  the 
Defendants'  election  was  in  full  conformity  with  the  requirements 
of  their  organic  law,  the  Relators'  election  was  defective,  in  that, 

1st.  The  charter  notice  was  not  given. 

2d.  The  election  was  not  held  in  the  place  prescribed  by  the 
charter. 
3 


34 

3d.  The  Relators'  electors  were  not  and  are  not  members  in  full 
communion  with  this  congregation  nor  pew-holders. 

4th.  The  Relators  have  not  been  and  are  not  recognized  by  the 
Session  of  this  congregation  as  being  in  full  communion  with  this 
church. 

I  shall  not  waste  your  Honor's  time  in  discussing  these  defects. 
Any  one  of  them  would  be  fatal  to  the  Relators'  titles  as  Trustees 
and,  therefore,  to  their  right  to  recover  in  this  action.  Our  learned 
opponents  have  attempted  by  ridicule  to  weaken  the  force  of  these 
objections.  They  have  asked  whether,  if  the  church  building  were 
burnt  to  the  ground  we  would  consider  it  necessary  to  the  validity 
of  the  corporate  election  that  it  should  be  held  amid  the  burning 
embers.  I  answer,  no  ;  the  law  does  not  compel  the  performance 
of  an  impossibility.  When  your  church  has  been  destroyed,  you 
cannot  hold  an  election  in  it.  But  I  say,  and  I  say  it  with  all  con- 
fidence, that  where  the  question  for  determination  is,  whether  an 
election  held  in  the  church,  or  an  election  held  elsewhere,  be  the 
annual  corporate  election,  then  that  election  held  in  the  place  pre- 
scribed by  the  charter  must  be  conclusively  presumed  to  be  the 
corporate  election. 

They  have  also  alleged  that  Messrs.  Guy  and  McMurray  alone 
constitute  the  Session  of  this  congregation,  and  they  have  denied 
the  validity  of  the  titles  of  the  Pastor  and  Elders  who  have  re- 
mained with  the  congregation  in  possession.  They  do  not,  how- 
ever, deny  that  prior  to  the  Relators'  secession  in  July,  1868, 
the  session  of  this  Congregation  consisted  of  the  following  mem- 
bers, Rev.  Dr.  Wylie,  Moderator,  Messrs.  George  H.  Stuart, 
Grant,  Smyth,  Chambers,  Ray,  McMurray  and  Guy.  If  they 
were  to  deny  this,  I  should  prove  that  those  gentlemen  were 
at  that  time  members  of  session  by  producing  that  which  would 
be  satisfactory  evidence  to  the  Relators,  if  to  no  one  else ; 
namely,  the  decree  of  the  Synod  of  1868,  (Minutes,  1868,  p.  42), 
naming  those  gentlemen  as  members  of  session,  enjoining  them 
from  the  exercise  of  judicial  powers,  and  therefore  by  implication 
admitting  them  to  be  in  the  full  enjoyment  of  all  their  other  offi- 
cial functions.  Your  Honor  will  search  in  vain  through  all  the 
records  of  the  Synod  from  that  day  to  the  present  time,  and 
through  all  the  voluminous  evidence  in  this  cause  for  anything 
tending  to  show  that  any  one  of  those  gentlemen  (except  Messrs. 


35 

Guy  and  McMurray)  has  been  legally  deposed  from  his  office.  You 
will  notice  also  that  the  Synodical  action  to  which  I  have  referred 
you  was  taken  after  the  Synod  had  adopted  the  resolution  suspending 
Mr.  Stuart  from  office  and  membership.  They  were  so  ashamed 
of  that  proceeding  and  so  conscious  of  its  invalidity  that  on  the 
very  next  day  after  they  had  declared  him  suspended,  they,  by  is- 
suing their  injunction  against  him  in  common  with  the  other  mem- 
bers of  session,  admitted  him  to  be  still  an  Elder  and  member  of  ses- 
sion, non-obstante  their  decree  of  suspension.  Taking  the  case  as 
regards  the  session  most  favorably  to  the  Relators,  it  appears  that 
they  had  with  them  two  members  of  session,  Messrs.  Guy  and 
McMurray,  while  the  other  six  members  remained  with  the  De- 
fendants in  possession.  It  is  clear,  therefore,  too  clear  for  argu- 
ment that  the  minority  who  seceded  from  session,  even  if  they 
were  elders  in  good  standing,  cannot  be  held  to  constitute  that 
body,  which  is  known  as  the  session.  A  majority,  the  six  who  re- 
mained, are  in  the  eye  of  the  law,  the  session  of  this  Congrega- 
tion. But  as  we  have  already  shown  your  Honor,  Messrs.  Guy 
and  McMurray  are  no  longer  elders  in  this  Congregation  and  can- 
not be  constituent  members  of  its  session.  They  were  regularly 
suspended  from  office  in  May,  1868,  and  that  decree  of  suspension 
has  never  been  reversed. 

Nor  is  there  any  evidence  in  this  cause  to  show  that  the  Rela- 
tors were  elected  by  electors  duly  qualified  according  to  the  char- 
ter ;  that  is,  by  pew-holders  or  members  in  full  communion.  Your 
Honor  will  remember  that  we  called  upon  them  to  produce  their 
list  of  voters  at  the  election  of  1870,  but  they  have  never  pro- 
duced it.  The  only  evidence  they  have  been  able  to  produce  upon 
this  point  is  to  be  found  in  the  testimony  of  Mr.  Hazel,  who  tes- 
tified that  he  was  present  when  the  Relators  were  elected,  and  that 
he  looked  at  the  voters  as  they  came  up  to  vote,  and  he  is  satis- 
fied that  they  were  all  qualified.  Yet  Mr.  Hazel  is  not  an  elder 
nor  has  he  ever  been  a  Trustee.  He  has  no  peculiar  means  of 
knowing  who  are  members  or  pew-holders.  Several  of  the  Rela- 
tors have  also  sworn  that  they  voted  at  that  election,  but,  as  we 
have  already  shown  you,  those  gentlemen  were  not  qualified  to 
vote,  for  in  July,  1868,  they  had  voluntarily  ceased  to  be  mem- 
bers of  the  Corporation.     I  submit  to  you,  therefore,  that  the  Re- 


36 

lators  have  failed  to  show  that  they  received,  on  the  first  Monday 
of  January,  1870,  the  vote  of  any  one  qualified  elector  of  this 
Corporation. 

Contrast  all  this  with  the  proof  in  regard  to  the  election  under 
which  the  Defendants  claim.  We  have  shown  you,  by  evidence, 
which  is  uncontradicted,  that  notice  of  the  Defendants'  election 
was  given  two  weeks  previous  from  the  pulpit  in  the  Church,  that 
the  election  was  held  by  ballot  in  the  Church  ;  that  the  Defend- 
ants were  chosen  at  that  election  by  the  votes  of  pew-holders  and 
members  in  full  communion.  We  have  also  given  you  the  name 
of  every  person  who  voted  at  that  election,  and  we  have  shown 
you  by  the  testimony  of  Dr.  Wylie,  who  has  for  17  years  kept 
the  records  of  the  Session,  and  by  the  testimony  of  Mr.  Johnston, 
who  has  for  8  years  kept  the  pew-book,  that  each  one  of  those 
voters  was,  at  the  date  of  the  election,  either  a  pew-holder  or  a 
member  in  full  communion.  We  have  also  shown  you  that  each 
one  of  the  Defendants  has  been  recognized  by  this  Session  as  be- 
ing in  full  communion  with  this  Church.  We  have  further  proved 
with  similar  particularity,  that  Mr.  George  H.  Stuart,  Jr.,  was  on 
2d  March,  1870,  elected  to  fill  a  vacancy. 

Your  Honor  has  before  you,  therefore,  the  case  not  of  two  sets 
of  corporate  officers  claiming  under  one  and  the  same  election,  but 
of  two  sets  of  officers,  one  set,  the  Defendants,  claiming  under  an 
election  held  in  strict  conformity  with  the  charter,  and  the  other 
set,  the  Relators,  claiming  under  a  different  election  distinguished 
by  the  flagrant  violation  of  every  material  requirement  of  that 
charter  by  which  they  profess  to  be  bound.  If  the  evidence  had 
stopped  at  this  point  Your  Honor  would  not  have  had  much  cause 
for  hesitation.  The  law  would  have  compelled  you  to  hold  that 
the  Relators  had  not  made  out  a  case  to  go  to  the  Jury ;  but,  for 
the  purpose  of  meeting  this  exigency,  the  Relators  have  intro- 
duced the  action  taken  by  the  Philadelphia  Presbytery  on  12th 
June,  1868,  and  the  subsequent  proceedings  of  the  Synodical 
Commission  and  the  Synod  of  1869.  That  evidence  is  intended 
to  impress  Your  Honor  and  to  impress  the  Jury  with  the  belief 
that  the  Defendants  and  their  electors  have  violated  the  trusts 
upon  which  they  hold  their  corporate  franchises  and  that,  there- 


37 

fore,  they  no  longer,  in  the  eye  of  the  law,  constitute  the  corpora- 
tion of  which  they  claim  to  be  members;  but  that  the  Relators 
and  their  adherents,  as  faithful  upholders  and  performers  of  those 
trusts,  constitute  the  corporation.  Before  I  proceed  to  consider 
the  trusts  which  are  raised  by  the  charter,  and  to  satisfy  your 
Honor  that  the  Defendants  have  not  violated  them,  I  desire  to  re- 
mind your  Honor  that  you  are  sitting  as  the  Judge  of  a  Court  con- 
stituted to  administer  the  Common  Law,  and  that  you  are  now 
engaged  in  trying  that  most  technical  of  all  common  law  actions, 
the  action  of  Quo  Warranto.  I  submit  to  you,  therefore,  that  the 
Relators  have  mistaken  their  remedy  and  should  have  sought  re- 
lief in  a  Court  of  Equity.  But  as  I  do  not  desire  to  argue  this 
case  upon  technicalities,  I  prefer  to  waive  that  point,  and  to  argue 
this  branch  of  the  case,  as  if  your  Honor  was  sitting  as  a  Chancel- 
lor. Now,  if  your  Honor  please,  what  are  the  trusts  upon  which 
the  members  of  this  Corporation  hold  their  franchises  ?  We  have 
been  told  again  and  again  during  the  progress  of  this  trial  that  this 
charter  vests  the  corporate  franchises  only  in  those  who  are  in 
subordination  to  the  Synod  ;  and  that  it  subjects  the  Corporators 
to  the  absolute  and  irresponsible  authority  of  that  body.  It  has 
been  put  to  you  again  and  again  with  all  the  eloquence  and  all  the 
ingenuity  of  the  Relators'  Counsel  that  the  charter  binds  the  Cor- 
porators hand  and  foot  to  the  Synod  ;  but  there  is  not  one  word 
in  the  charter  that  will  bear  such  a  construction.  The  only  por- 
tion of  the  charter  which  has  any  reference  to  this  subject  is  the 
second  article,  and  that  declares  the  Corporators  to  be  those 
"  who  adhere  to  and  maintain  the  system  of  religious  principles 
declared  and  exhibited  by  the  Reformed  Presbyterian  Synod  of 
North  Aynei'ica."  In  other  words,  the  charter  subjects  us  to 
principles,  not  to  men  :  to  doctrines,  not  to  doctors. 

Such  being  the  only  clause  in  the  Charter  which  can  be  tor- 
tured into  any  resemblance  to  a  trust,  what  act  of  the  Defend- 
ants do  the  Relators  allege  as  a  breach  of  that  trust  ?  Which 
one  of  the  Religious  Principles  declared  and  exhibited  by  the 
Reformed  Presbyterian  Synod  of  North  America  do  the  Rela- 
tors charge  the  Defendants  with  having  violated?  Their  whole 
case  rests  upon  the  alleged  act  of  secession  committed  by  the  Re- 
formed Presbytery  of  Philadelphia  on  the  12th  June,  1868.  The 
resolutions  then  adopted  by  the   Presbytery  have  been  read  in 


38 

your  Honor's  hearing.  You  have  observed  that  so  far  from  ex- 
pressing any  intention  to  secede,  the  Presbytery,  after  reciting  the 
irregular  and  unauthorized  action  of  the  Synod  of  1868  (upon 
■which  I  bave  already  commented  at  length)  adopted  the  following 
declaration  : — "  We  do  therefore  hereby  suspend  our  relations  to 
said  Synod  until  such  action  be  revoked,  or  until  we  obtain  further 
light,  and  in  the  meantime  we  REMAIN  in  the  Reformed  Presby- 
terian Church,  maintaining  her  organization  and  endeavoring  to 
develop  and  apply  her  principles  in  their  proper  application  to  the 
age  and  country  in  which  we  live,  trusting  that  ere  long  those  who 
have  disregarded  her  constitution  and  her  laws,  and  have  per- 
verted her  order  and  her  discipline,  will  rescind  their  illegal  acts 
and  concur  with  us  in  the  views  we  have  thus  announced."  It  is 
worse  than  idle  to  argue  that  that  is  secession.  Men  who  intend 
to  secede  from  a  body  do  not  usually  inform  the  world  that  they 
remain  with  it.  Contrast  the  action  of  this  Presbytery  with  the 
origin  of  the  Secession  Church  in  Scotland.  In  the  year  1733 
certain  ministers  of  the  Church  of  Scotland  seceded  therefrom, 
and  organized  that  body  which  to  this  day  bears  the  name  of  the 
Secession  Church.  They  then  signed  a  document  which  is  to  be 
found  on  page  64  of  M'Kerrow's  History  of  the  Secession  Church, 
in  which,  after  reciting  their  grievances,  they  say: — 

"  Therefore  we  do,  for  these  and  many  other  weighty  reasons, 
to  be  laid  open  in  due  time,  protest,  that  we  are  obliged  to  make  a 
Secession  from  them,  and  that  we  can  have  no  ministerial  com- 
munion with  them,  till  they  see  their  sins  and  mistakes,  and 
amend  them.  And,  in  like  manner,  we  do  protest,  that  it  shall  be 
lawful  and  warrantable  for  us  to  exercise  the  keys  of  Doctrine, 
Discipline,  and  Government  according  to  the  Word  of  God  and 
Confession  of  Faith,  and  the  principles  and  constitutions  of  the 
Church  of  Scotland,  as  if  no  such  censure  had  been  passed  upon 
us.". 

There,  if  your  Honor  please,  the  would-be  seceders  not  only  ex- 
pressed in  so  many  words  their  intention  to  secede,  but  also  asserted 
their  right  to  maintain  a  separate  ecclesiastical  government.  In 
our  case  Presbytery  declined  to  continue  their  organic  connection 
with  the  Synod  until  the  Synod  rescinded  certain  illegal  acts ; 
but  asserted  their  intention  to  remain  in  the  Church. 


39 

Nor  were  the  Presbytery  without  a  precedent  for  their  action. 
In  the  year  1706  the  Reformed  Presbyterians  of  Scotland  being 
without  a  regular  ministry,  the  Rev.  John  M'Millan  acceded  to 
them  from  the  Judicatories  of  the  Established  Church,  who  promptly 
followed  this  act  on  his  part  with  a  sentence  of  deposition  from 
the  ministry.  The  Reformed  Presbyterian  Church  sustained  him 
in  his  course  and  approved  his  rebellion  against  the  ecclesiastical 
authorities,  to  whom,  according  to  the  Relators'  doctrines,  he 
should  have  bowed  in  submission  (Reformation  Principles,  Hist, 
part,  p.  103).  I  find  also  that  Renwick,  the  martyr  Renwick, 
whose  authority  ought  to  have  great  weight  with  the  Relators' 
clerical  allies,  inculcates  in  his  "  Informatory  Vindication,"  p. 
229,  the  duty  of  separating  from  "  the  backsliding  part  of  a 
church  after  they  have  become  obstinate  in  the  declinings  of 
former  sound  principles  and  practices."  I  find  also  that  it  is  de- 
clared in  the  Reformation  Principles  (Doctrinal  part,  p.  68),  that 
"when  the  administration  (of  the  Church)  is  corrupt,  and  attempts 
at  its  reformation  have  proved  ineffectual,  it  is  the  duty  of  Chris- 
tians to  separate  from  it ;  and  if  the  majority  should  violate  the 
terms,  upon  which  Church-members  were  united,  it  is  lawful  for 
the  minority  to  testify  against  the  defection,  and  to  walk  by  the 
rule  of  their  former  attainments."  In  the  light  of  these  authori- 
ties, and  remembering  how  utterly  unauthorized  and  how  subver- 
sive of  the  rights  of  all  the  individual  members  of  the  Church,  the 
acts  of  that  Synod  of  1868  were,  will  any  one  say  that  the  Presby- 
tery committed  any  breach  of  the  laws  of  the  Church  in  suspend- 
ing relations  with  that  Synod  ?  But,  suppose  for  the  sake  of 
argument,  that  the  action  of  the  Presbytery  was  ultra  vires ;  and 
suppose  also  that  the  Defendants  and  their  adherents  participated 
in  that  action,  how  is  the  Relators'  case  strengthened  thereby  ? 
The  charter,  as  I  have  already  shown  you,  does  not  require  the 
Corporators  to  be  in  organic  connection  with  the  Synod,  but  it 
does  require  them  to  adhere  to  and  maintain  the  system  of  re- 
ligious principles  which  the  Synod  held  in  1816.  I,  therefore, 
submit  to  your  Honor  that  before  the  Relators  can  successfully 
contend  that  the  Defendants'  ratification  of  the  Presbyterial  sus- 
pension of  relations  is  a  breach  of  the  trust  upon  which  they  hold 
their   corporate  franchises,  they  must    convince   you   that   such 


40 

action  upon  the  part  of  the  Defendants  is  distinctly  forbidden  by 
the  system  of  religious  principles  declared  and  exhibited  by  the 
Synod  of  1816.  This  they  have  failed  to  do  ;  and  so  far  from 
there  being  any  such  proof  in  the  cause,  we  have  shown  you,  on 
the  contrary,  that  the  Presbytery,  in  suspending  relations,  did  not 
only  that  which  the  law  of  their  Church  permitted  them  to  do, 
but  also  that  which,  in  obedience  to  the  instructions  of  the  fathers 
of  the  Church  and  their  own  published  doctrines,  they  were  bouud 
to  do. 

Nor  is  there  in  the  voluminous  mass  of  testimony  in  this  cause, 
a  scintilla  of  evidence,  tending  to  show  that  the  Defendants  or 
their  partisans  have,  in  the  most  minute  particular,  departed  from 
the  faith  of  their  Fathers.  No  witness  has  had  the  hardihood  to 
say  that.  Much  has  been  insinuated  as  to  loose  views  held  by 
some  of  the  Defendants  on  the  subject  of  Psalmody.  "  Psalms 
vs.  Hymns"  was,  as  your  Honor  will  remember,  the  party  cry  of 
the  Relators  in  1868.  -The  charge  that  the  Defendants  intended 
to  abandon  the  ancient  Psalmody  was  the  pretext  for  obtaining 
signatures  to  the  "Remonstrance."  Yet  no  one  has  been  found 
to  testify  that  a  hymn  has  ever  been  sung  in  the  religious  services 
of  this  congregation,  nor  is  there  any  proof  that  any  one  of  the 
Defendants  or  their  partisans  intended  to  sing  a  hymn  in  those 
services. 

It  is  therefore  an  uncontradicted  fact  in  this  cause,  clear  beyond 
the  possibility  of  controversy,  that  the  Defendants  have  not  vio- 
lated the  trusts  upon  which  they  hold  their  franchises.  The  law 
applicable  to  this  state  of  facts  is  equally  clear.  I  shall,  there- 
fore, detain  your  Honor  but  a  few  moments  in  the  statement  of  it. 
The  leading  case  upon  this  subject  is  Craigdallie  vs.  Aikman,  1 
Dow.,  P.  C.  I.  Prior  to  the  decision  of  that  case  in  1813,  there 
had  been  much  uncertainty  in  the  law  as  to  the  ratio  deci- 
dendi in  controversies  between  dissentient  portions  of  religious 
bodies.  The  Scottish  Courts  were  at  one  time  inclined  to 
adopt  the  very  simple  rule  of  holding  the  numerical  majority 
of  the  particular  congregation  to  be  fully  clothed  with  power 
to  control  the  disposition  of  property  held  in  trust  for  the  con- 
gregation;  at  another  time,  they  held  that  the  majority,  in 
point   of  interest,  of  the    congregational    contributors   were    to 


41 

be  regarded  as  entitled  to  the  exercise  of  that  control ;  at  still 
another  time,  they  held  the  power  to  be  vested  in  tbat  por- 
tion of  the  congregation, 'which  continued  in  connection  with  the 
Supreme  Ecclesiastical  judicatory  of  the  denomination,  with  which 
the  congregation  had  originally  been  in  connection.  For  a  very 
full  and  lucid  history  of  the  Scotch  and  English  Law  upon 
this  subject,  I  beg  leave  to  refer  your  Honor  to  one  of  the  most 
scholarly  and  philosophical  legal  treatises  it  has  ever  been  my 
good  fortune  to  examine,  the  work  of  Mr.  Alexander  Taylor 
Innes,  of  Glasgow,  upon  the  "  Law  of  Creeds  in  Scotland." 
When  the  Craigdallie  case  first  came  before  the  House  of  Lords, 
Lord  Eldon  brushed  away  the  conflicting  rules  enunciated  by  the 
Scotch  Courts  and  laid  down  a  principle,  so  eminently  logical  and 
equitable,  that  it  has  been  followed  in  all  the  English  and  Penn- 
sylvania cases  from  that  time  to  the  present  day.  That  principle 
is  this :  that  where  there  is  a  controversy  between  two  parties  in 
a  congregation  as  to  the  right  to  the  exclusive  use  of  the  congre- 
gational property,  the  Court  will  inquire,  as  matter  of  fact,  what 
were  the  doctrines  for  the  support  and  inculcation  of  which  the 
property  in  question  was  originally  acquired  by  the  congregation, 
and  will  then  decree  that  those  who  maintain  those  doctrines  arc 
entitled  to  the  exclusive  benefit  of  the  trust.  Your  Honor  is 
familiar  with  the  English  and  Irish  cases  in  which  this  doctrine 
has  been  followed :  Attorney  General  vs.  Pearson,  3  Merivale 
353 ;  Lady  Hewlett's  Charities,  7  Sim. ;  Shore  vs.  Wilson,  9 
Clark  and  Fin.  355;  Dill  vs.  Watson,  2  Jones  Irish  Exchequer 
48  ;  and  I  need  not  consume  your  time  in  commenting  upon  them. 
There  are  however  two  Pennsylvania  cases  to  which  I  desire 
particularly  to  draw  your  attention.  In  Presbyterian  Congrega- 
tion vs.  Johnston,  1  W.  &  S.  9,  decided  in  1841,  the  question  was 
whether,  after  the  separation  of  the  Presbyterian  Church  into  the 
Old  and  New  School  bodies,  the  majority  of  the  congregation 
had,  by  adhering  to  the  New  School  Assembly,  forfeited  their 
title  to  property  wdiich  had  been  conveyed  in  trust  for  a  society 
of  English  Presbyterians.  In  that  case,  as  in  this,  there  was  no 
doctrinal  variance,  and  the  only  breach  of  trust  alleged  was  in  the 
severance  of  congregational  connection  with  the  Old  School  As- 
sembly.    The   Court  held,   Mr.  Chief  Justice  Gibson  delivering 


42 

the  opinion,  that  the  trust  required  the  maintenance  of  the 
doctrines  of  the  Presbyterian  faith  but  did  not  require  an  or- 
ganic connection  with  that  particular  assembly,  and  that,  there- 
fore, the  adherence  of  the  congregation  to  the  New  School  As- 
sembly did  not  work  a  forfeiture  of  their  right  to  claim  under 
the  trust.  That  case  is  followed  and  supported  by  the  Lutheran 
Church  case,  12  Wr.  20,  in  which  the  question  was,  whether  a  Lu- 
theran congregration,  which  had  withdrawn  from  the  Alleghany 
Synod  and  had  connected  itself  with  the  Missouri  Synod  of  the 
same  body,  had  thereby  forfeited  its  right  to  property,  which  had 
been  vested  in  the  congregation  described  as  of  the  Lutheran  faith 
but  not  mentioned  as  in  organic  connection  with  any  judicatory  of 
that  denomination.  This  Court  held  that  there  had  been  no  for- 
feiture ;  and  the  present  Chief  Justice,  in  delivering  the  opinion, 
comments  upon  the  absence  from  that  case  of  all  proof  of  doctrinal 
variance  and  holds  that  unless  it  were  shown  that  the  severance  of 
the  congregation's  Synodical  connection  is  a  breach  of  the  trusts 
specifically  set  forth  in  their  title  deeds,  or  a  violation  of  some 
doctrine  of  the  Lutheran  faith,  no  forfeiture  of  property  could  re- 
sult therefrom. 

It  is  difficult  to  distinguish  those  cases  from  the  one  at  bar. 
The  charter  of  this  corporation  does  not  require  it  to  be  in  organic 
connection  with  the  Synod ;  nor  is  it,  as  I  have  shown  you,  one 
of  the  system  of  religious  principles  declared  and  exhibited  by  the 
Reformed  Presbyterian  Synod  of  North  America,  that  the  mem- 
bers of  this  Reformed  Presbyterian  Church  should  blindly  follow 
and  tamely  submit  to  anything  which  the  Synod  may  please  to  do 
in  flagrant  violation  of  the  laws  of  the  Church  and  of  the  terms 
upon  which  its  members  are  united. 

I  say,  therefore,  with  all  confidence,  that  under  the  law  of 
Pennsylvania,  as  laid  down  in  the  cases  to  which  I  have  referred, 
the  Defendants  have  not,  by  their  alleged  ratification  of  the 
Presbyterial  suspension  of  relations,  forfeited  their  corporate 
franchises. 

But  the  learned  counsel  for  the  Relators  have  cited  certain 
cases,  as  tending  to  maintain  the  contrary  of  this  proposition,  and 
I  shall  endeavor,  in  a  few  words,  to  show  you  that  these  cases  do 
not  militate  against  those  views  of  the  law  which  I  am  here  to 
maintain. 


43 

Their  first  case  is  Commonwealth  vs.  Green,  4  Wh.  531  ;  the 
great  Presbyterian  Church  case,  in  which,  after  the  disruption  in 
1837,  this  Court  held  that  the  Old  School  Assembly  was,  by  rea- 
son of  its  regularity  of  organization,  in  continuity  of  succession  to 
the  General  Assembly  of  the  Church,  as  it  had  been  before  the 
disruption  ;  but  in  that  case  nothing  was  decided,  as  to  any  con- 
gregational trusts.  This  is  made  very  clear  by  Mr.  Chief  Justice 
Gibson's  comments  upon  this  case  in  his  opinion  in  Congregation 
vs.  Johnston,  1  W.  $  S.  38,  to  which  I  have  already  referred.  In 
Skilton  vs.  Webster,  Bright.  203  ;  Winebrenner  vs.  Colder,  7  Wr. 
244;  Den  vs.  Bolton,  7  Halst.  214;  and  Hitter  vs.  Schnorr,  (de- 
cided by  this  Court  a  few  months  ago) ;  there  was,  in  each  case,  a 
clear  and  unmistakable  breach  of  the  trust  upon  which  the  particu- 
lar congregation  held  the  property  or  franchises  in  question.  No 
one  of  those  cases  impugns  the  validity  of  the  rule  of  law,  which  I 
contend  to  be  applicable  to  this  case.  Indeed  they  all  expressly 
or  impliedly  admit  it,  for  each  turns  upon  facts  which  constitute  it 
an  exception  to  the  rule.  I  submit,  therefore,  that  upon  a  careful 
examination  of  these  cases,  your  Honor  will  find  nothing  which  in 
any  way  impairs  the  force  of  the  authorities  upon  which  the  De- 
fendants rely. 

But  the  Relators  have  still  another  resource.  They  produce, 
with  an  air  of  great  triumph,  that  very  remarkable  decree  promul- 
gated by  the  Synodical  Commission,  in  June,  1868,  and  confirmed 
by  the  Synod  of  1869,  in  the  following  words  : 

"  Resolved,  That  Dr.  A.  S.  McMurray  and  Robert  Guy,  ruling 
"  elders,  with  the  officers  and  members  whose  names  appear  on  the 
"  various  papers  submitted  to  Synod  at  its  late  meeting,  and  by 
"  Synod  referred  to  this  Commission,  together  with  such  others 
"  as  may  adhere  to  them,  be  and  they  hereby  are  declared  to  be 
"  the  First  Reformed  Presbyterian  Congregation  of  Philadelphia, 
"  and  as  such  entitled  to  all  the  rights  and  immunities  appertaining 
"  thereto,  and  by  this  Commission,  in  the  exercise  of  the  power 
"  entrusted  to  it  by  Synod,  are  hereby  placed  under  the  care  of 
"  the  Second  Reformed  Presbytery  of  Philadelphia." 

The  learned  counsel  for  the  Relators  profess  to  rely  upon  that 
decree  as  decisive  of  this  controversy,  because  judicially  determin- 
ing the  Relators'  electors  to  be  the  constituent  members  of  the 
corporation. 


44 

But  I  will  undertake  to  satisfy  your  Honor  that  neither  the 
Commission  nor  the  Synod  had  any  jurisdiction  of  the  subject  mat- 
ter of  this  decree;  that,  therefore,  the  decree  is  a  nullity;  and 
that  even  if  they  had  had  jurisdiction,  the  defects  in  their  proced- 
ure are  fatal  to  the  validity  of  their  decree.  I  ask,  therefore,  in 
the  first  place,  what  are  the  limits  of  the  Synod's  Jurisdiction  ? 
But  just  here  I  am  met  by  an  objection  from  my  learned  opponents, 
who  argue  in  effect,  that  the  Synod  alone  can  determine  what  is 
technically  known  as  the  jurisdictional  fact  ;  or  in  other  words, 
that  when  this  Synod  or  any  other  ecclesiastical  body  has  acted  in 
a  matter  of  which  they  claim  to  have  jurisdiction,  that  then  all 
civil  tribunals  must  not  only  refuse  to  disturb  that  ecclesiastical 
decree,  but  must  give  to  it  the  conclusive  effect  they  would  give  to 
the  judgment  of  a  civil  Court  of  record  ;  more  than  that  they  must 
resolutely  shut  their  eyes  to  palpable  defects  in  the  ecclesiastical 
proceedings,  defects  so  subversive  of  right  and  justice  that  they 
would  render  nugatory  the  judgment  of  any  civil  court.  I  say 
with  all  respect  to  the  learned  counsel  that  such  an  argument  is  a 
gross  absurdity.  Let  me  illustrate  this  by  putting  a  case  to  your 
Honor.  Suppose  that  this  Synod  at  its  next  meeting  were  to 
enter  a  decree  that  Mr.  Justice  Williams  be  deposed  from  his  seat 
upon  the  bench  and  degraded  from  his  high  office  ;  would  your 
Honor,  or  your  Honor's  colleagues  on  the  bench  obey  that  decree  ? 
Or  suppose  that  that  Synod  were  to  enter  another  decree,  confiscat- 
ing all  the  property,  real  and  personal,  of  the  twelve  jurymen  in 
this  cause  ;  would  any  court  in  Christendom  enforce  that  decree  ? 
And  why  not  ?  For  this,  among  many  other  reasons,  that  in  those 
decrees  the  Synod  would  attempt  to  determine  questions  of  civil 
right  over  which  they  cannot  have  jurisdiction. 

If  the  Synod  can  exercise  this  vague  and  undefinable  power, 
why  was  the  "Book  of  Discipline"  ever  adopted  by  the  Church? 
It  is  absurd  to  enact  laws  to  control  an  omnipotent  body.  Why 
was  the  Synod's  jurisdiction,  original  and  appellate,  so  carefully 
distinguished  and  defined  therein,  if  it  be  an  established  doctrine 
that  the  Synod  can  conclusively  determine  whether  any  subject  or 
any  person  is,  or  is  not,  within  its  jurisdiction  ?  The  31st  chapter 
of  the  "  Westminster  Confession  "  does  not  seem  to  support  the 
Relators'  view  of  the  functions  and  powers  of  Synods,  for  it  is 
there  laid  down  as  follows  : — 


45 

IV.  "  All  synods  or  councils  since  the  apostles'  times,  ■whether 
general  or  particular,  may  err,  and  many  have  erred ;  therefore, 
they  are  not  to  be  made  the  rule  of  faith  or  practice,  but  to  be 
used  as  a  help  in  both." 

V.  "  Synods  and  councils  are  to  handle  or  conclude  nothing  but 
that  which  is  ecclesiastical  ;  and  are  not  to  intermeddle  with 
civil  affairs,  which  concern  the  Commonwealth,  unless  by  way  of 
humble  petition,  in  cases  extraordinary  ;  or  by  way  of  advice  for 
satisfaction  of  conscience,  if  they  be  thereunto  required  by  the 
civil   magistrate." 

Who  will  say  that  the  Synod  in  declaring  Messrs.  McMurray, 
Guy  and  their  adherents  to  be  the  only  members  of  this  corpora- 
tion and  as  such  entitled  to  all  the  rights  and  immunities  apper- 
taining thereto,  was  acting  within  the  limits  of  this  law?  Your 
Honor  is,  I  doubt  not,  satisfied  that  at  least  one  Synod,  since  the 
apostles'  times,  has  erred  grievously. 

But  one  case  has  been  cited  for  the  Relators,  which  seems  to 
give  some  show  of  judicial  approval  to  their  high  prerogative  doc- 
trine in  regard  to  the  Synod — Missouri  vs.  Farris,  45  Mo.  183 — 
in  which  the  question  was  as  to  the  validity  of  the  action  of  the 
General  Assembly  of  the  Old  School  Presbyterian  Church  in  1866, 
with  regard  to  the  "  Declaration  and  Testimony."  The  ease  de- 
cides nothing  as  to  the  power  of  the  Assembly  over  individual 
congregations,  but  it  does  determine,  substantially,  that  in  that 
denomination  the  Assembly  may,  at  its  pleasure,  make  and  unmake 
the  Presbyteries.*  I  do  not  believe  that  that  is  the  law.  I  am 
sure  that  that  case  would  have  been  differently  determined  by  this 
Court.  But  even  if  the  Missouri  Court  were  right  in  so  deciding, 
that  case  is  no  precedent  for  this,  for  the  point  therein  adjudicated 
is  radically  different  from  that  in  question  here ;  and  the  Synod 
of  the  Reformed  Church  is  hampered  by  restrictions  from  which 
the  General  Assembly  is,  in  the  view  of  the  Missouri  Court  at 
least,  free.  On  the  other  hand,  Gartin  vs.  Pennick,  5  Bush  110, 
decides  the  action  of  the  Assembly  in  1866  to  be  ultra  vires. 

I  am  confident,  therefore,  that  your  Honor  is  with  me  thus  far  at 


*  In  the  late  case  of  the  Si.  Charles    Church,  the  Missouri   Court  refused   to  apply  the 
doctrine  of  Missouri  re.  Farris  to  the  case  of  a  congregation. 


46 

least,  and  I  need  not  waste  time  nor  breath  in  satisfying  you  that  the 
law  sets  limits  to  the  jurisdiction  of  this  arrogant  Synod  and  that  the 
decision  of  questions  of  civil  right  lies  far  beyond  those  limits.  If 
this  matter  were  otherwise  in  doubt  the  constitution  of  this  Common- 
wealth and  the  decisions  of  this  court  settle  it.  The  fifth  article  of 
the  constitution  vests  the  judicial  power  of  this  Commonwealth  in 
certain  courts,  among  whom  this  Synod  is  not  mentioned  ;  and  in 
the  judicial  determinations  of  this  court  it  has  been  said  again  and 
again  that  the  judicial  power  thus  distributed  is  the  Common- 
wealth's whole  judicial  power,  and  that  no  tribunal,  not  mentioned 
in  the  constitution,  can  exercise  any  of  it.  We  cannot,  therefore, 
have  much  difficulty  in  this  state  in  reaching  positive  conclusions 
upon  a  question,  which  was  at  one  time  in  Scotland  somewhat 
vexed;  that  is,  whether  ecclesiastical  bodies  have  an  inherent  power 
of  deciding  controversies.  I  must  admit  that  this  Synod  is  a  Court 
within  one  somewhat  celebrated  reading  of  Mr.  Justice  Blackstone's 
definition  ;  "A  Court  is  a  place  where  injustice  is  judicially  ad- 
ministered ;"  for  if  a  body  ever,  with  malice  prepense  and  afore- 
thought, deliberately  set  itself  to  the  work  of  doing  injustice,  that 
body  is  this  Reformed  Presbyterian  Synod.  But  I  contend  for  the 
reasons  already  stated,  that  this  Synod  is  not  a  Court  ex-proprio 
motu,  and  can  exercise  no  jurisdiction  over  this  corporation  and 
its  corporators,  which  is  not  explicitly  granted  to  it  by  the  char- 
ter, or  conferred  upon  it  by  that  system  of  religious  principles  to 
which  the  charter  subjects  the  corporation.  I  therefore,  ask  my 
learned  opponents  to  point  out  that  charter  provision,  or  religious 
doctrine,  which  vests  in  the  Synod  jurisdiction,  to  conclusively  de- 
termine who  are  the  members  of  a  Pennsylvania  corporation. 
All  their  learning  and  ability  will  not  avail  them  in  the  search  for 
such  an  authority.     It  cannot  be  found. 

I  submit,  therefore,  that  I  have  established  beyond  all  doubt  the 
Synod's  want  of  jurisdiction  over  the  subject  matter  of  their  ac- 
tion. I  need  cite  no  authorities  upon  the  point  that  their  decree 
is  consequently  void.  The  books  are  full  of  cases  in  which  it  has 
been  held  that  where  a  court  oversteps  the  boundaries  of  its  juris- 
diction its  action  is  a  nullity.  The  Marshalsea  case,  10  Rep.  68, 
76  ;  Notes  to  Crepps  v.  Durden,  1  Sm.  Lead.  Cas.  821,  832. 

I  might  safely  rest  the  Defendants'   case  at  this  point,  but  I 


1 


47 

must  confess,  that  it  gives  me  great  pleasure  to  comment  upon 
the  manifold  defects  in  the  decree  of  that  Synod,  who  have  in  de- 
fiance of  law  and  justice,  attempted  to  wrest  from  the  Defendants 
rights  which  are  very  dear  to  them.  Admitting,  therefore,  for 
the  sake  of  argument,  that  the  Synod  had  jurisdiction  of  the 
subject  matter  of  their  action,  I  argue,  in  the  next  place,  that 
the  decree  is  void  for  want  of  notice  to  those  whose  rights  are 
sought  to  be  affected  thereby.  The  record  of  the  commission 
recites  service  of  process  upon  seven  out  of  the  four  hundred 
and  thirty  corporators  whom  the  decree  seeks  to  disfranchise. 
The  Synod  of  1869  before  confirming  the  decree  gave  notice  to 
no  one  of  those  corporators.  For  want  of  such  notice,  therefore, 
the  decree  is  void  as  against  the  Defendants  and  their  electors. 
Bagg's  case,  11  Rep.  93  ;  Rex  v.  Gaskin,  5  Term  R.  199 ;  Elder 
v.  Reel,  12  P.  F.  Sm.  315. 

But  the  Relators'  counsel  have  very  ingeniously  suggested  that 
in  the  case  of  Commonwealth  v.  Green,  this  court  held  certain 
action  of  the  Presbyterian  Assembly  to  be  legislative  and  not  ju- 
dicial in  character  and,  therefore,  not  void  for  want  of  service  of 
process ;  and  they  have  endeavored  to  argue  that  this  Synodical 
decree  falls  within  that  rule.  The  answer  to  that  is  this  ;  that  the 
action  of  the  General  Assembly  was  the  legislative  dissolution  of 
a  union  which  had  been  made  by  legislative  action,  and  that  the 
decree  dissolving  the  union  did  not  affect  any  individual  congre- 
gation  but  by  its  express  terms  permitted  any  such  to  attach 
themselves  to  the  nearest  Presbytery  connected  with  the  General 
Assembly  ;  Mr.  Chief  Justice  Gibson  indeed  says,  in  his  Opinion 
(4  Wh.  601,)  "  Now  had  the  exscinded  Synods  been  cut  off  by 
"a  judicial  sentence  without  hearing  or  notice,  the  act  would  have 
"  been  contrary  to  the  cardinal  principles  of  natural  justice;  and 
"  consequently  void."  But  even  if  the  Synodical  decree  in  this 
case  were,  as  it  is  not,  legislative  in  character,  the  Relators'  case 
would  not  be  aided  thereby.  No  citizen  can  be  deprived  of  his 
property  unless  by  the  judgment  of  his  peers  or  the  law  of  the 
land,  and  this  court  has  again  and  again  held  that  that  constitu- 
tional provision  forbids  the  accomplishment  of  such  robbery  by  a 
legislative  rescript.     What  you  have  denied  to   the  legislature  of 


48 

this  free  Commonwealth,  you  will  not  permit  to   be  done  by  any 
body  of  ecclesiastics. 

The  Synodical  decree  may  be  considered — first,  as  disfranchising 
the  Defendants  and  their  electors ;  or,  second,  as  making  new 
terms  of  corporate  membership,  and  constituting  Messrs.  M'Murray, 
Guy  and  others  to  be  the  corporate  members  in  accordance  with 
those  new  terms.  It  is  obvious  that,  if  the  decree  is  to  aid  the  Relators 
in  this  cause,  it  is  to  be  considered  in  the  light  first  above  stated; 
for,  if  the  Defendants'  electors  are  not  thereby  disfranchised,  their 
election  having  been  held  in  strict  accordance  with  the  charter,  the 
Trustees  elected  by  them  are  entitled  to  their  offices,  and  the  Jury 
must,  then,  find  for  the  Defendants.  The  exigency  of  their  case 
compels  the  Relators  to  rely  upon  the  action  of  the  Synod  as  a 
valid  and  effectual  disfranchisement  of  the  Defendants'  electors. 
But  here  again  the  law  is  clearly  against  them — Bagg's  case,  11 
Rep.  93  ;  Binn's  case,  2  Binn.  411  ;  Evans  vs.  The  Club,  14  Wr. 
107,  make  it  clear  that  a  corporator  cannot  be  disfranchised 
unless  the  charter  gives  an  express  power  of  disfranchisement ; 
or  unless  he  has  been  tried  and  found  guilty  of  an  offence  in- 
dictable at  common  law,  or  of  a  breach  of  his  duty  as  a  corpora- 
tor. If  there  be  no  charter  power  of  expulsion,  it  is  necessary 
that  the  corporation  try  him  upon  charges  regularly  pre- 
ferred and  after  due  notice.  The  charter  in  question  here  con- 
tains no  express  power  of  disfranchisement.  It  cannot  be  con- 
tended that  the  Defendants  or  any  one  of  their  electors  has  com- 
mitted an  offence  indictable  at  common  law,  or  is  guilty  of  any 
breach  of  corporate  duty.  If  there  had  been  any  such  dereliction 
on  the  part  of  any  of  them,  no  charges  have  been  preferred  nor 
has  any  trial  been  had.  It  follows,  therefore,  that  in  the  eye  of 
the  law  the  Synodical  decree  has  failed  of  its  intended  effect,  and 
no  one  of  the  parties  sought  to  be  affected  thereby  has  been  legally 
disfranchised.  From  this  it  results  that  the  Defendants  and  their 
electors  are,  the  Synod  to  the  contrary  notwithstanding,  members 
of  the  corporation,  and  the  Defendants,  as  officers  elected  by  them, 
are  entitled  to  their  offices  and  to  a  verdict  at  the  hands  of  this 
Jury. 

Nor  is  the  Synodical  action,  considered  as  constituting  Messrs. 
M'Murray,  Guy  and   others  as   corporators,  in  any  closer  accord- 


49 

ance  'with  the  law.  The  charter  nowhere  imposes  adherence  to 
Messrs.  M'Murray  and  Guy,  or  the  signing  of  papers  addressed  to 
Synod,  as  terms  of  corporate  membership.  But  it  is  beyond  the 
power  of  any  body,  even  the  legislature  of  Pennsylvania,  to  alter 
this  charter  without  the  consent  of  every  one  of  the  corporators. 
Dartmouth  College  case,  4  Wheat.  518 ;  Brown  vs.  Hummell,  6 
Barr  93.     Here,  again,  the  Synodical  decree  is  void. 

Even  if  the  Relators'  case  admitted  of  a  triumphant  answer  to  each 
one  of  the  objections  I  have  stated,  I  should  still  be  able  to  dispose 
of  the  Synodical  decree  by  calling  your  Honor's  attention  to  the 
fact  that  the  Synod  and  the  Commission  proceeded  in  violation  of 
the  laws  of  their  own  Church.  I  have  already  shown  your  Honor 
that  the  Synod  of  1868  had  no  authority  to  appoint  the  Commission, 
for  they  had  no  original  jurisdiction  of  the  subject-matter,  the 
jurisdiction  of  the  Philadelphia  Presbytery  having  already  attached 
and  that  body  having  entered  without  delay  or  remissness  upon  the 
judicial  investigation  of  the  difficulties  in  this  congregation,  and  no 
appeal  having  been  taken  from  the  Presbytery  to  the  Synod. 
Secondly,  the  Commission  did  not  pursue  the  powers  delegated 
to  it,  but  took  cognizance  of  the  Presbyterial  suspension  of  rela- 
tors and  founded  their  decree  upon  it,  while  the  Synod  had  not 
authorized  them  to  review  the  Presbyterial  action,  but  had  re- 
stricted them  to  the  consideration  of  difficulties  existing  in  the 
congregation.  Thirdly,  the  Book  of  Discipline  prescribes  the 
procedure  for  ecclesiastical  trials,  but  the  Commission  in  their 
haste  to  enter  judgment  and  issue  execution  against  the  Defend- 
ants and  their  partisans,  neglected  to  try  them  before  condemning 
them.  Fourthly,  the  Commission,  not  having  followed  the  terms 
of  its  original  appointment  must  entirely  depend  for  the  validity 
of  its  action  upon  its  subsequent  confirmation  by  the  Synod  of 
1869,  but  the  Relators  and  their  adherents  seceded  from  the 
corporation  nearly  a  year  before  the  Synod  entered  their  decree 
of  confirmation. 

I  have  but  one  more  objection  to  suggest.    If  these  ecclesiastical 

deerees  were  all   that   they  are   not,  and  if  the   law  bound  your 

Honor  to*  enforce  them,  instead  of  compelling  you,  as  it  does,  to 

disregard  them,  I  should  still  rely  confidently  on  the  fact  that  the 

Relators  have  not  brought  themselves  within  the  terms  of  the  de- 
4 


50 

crees.  There  is  not,  if  your  Honor  please,  any  evidence  in  this 
cause  showing  that  the  Relators'  electors  were  signers  of  the 
various  papers  submitted  to  the  Synod  of  1868,  or  were  adherents 
of  these  signers.  For  aught  that  has  appeared  in  proof  the  Re- 
lators were  on  the  first  Monday  of  January,  1870,  elected  by  the 
votes  of  those  who  had  no  more  to  do  with  the  Synod  of  1868  than 
I  had.  I  submit  that  the  Relators  are  bound  to  bring  themselves, 
by  clear  and  positive  evidence,  within  the  terms  of  the  decree 
upon  which  they  rely. 

I  thank  your  Honor,  and  I  thank  you,  Gentlemen  of  the  Jury, 
for  the  patient  attention  with  which  you  have  listened  to  me.  I 
did  not  intend  to  have  taken  up  so  much  of  your  time.  So  far  as 
I  am  concerned,  I  submit  the  Defendants'  case  to  you,  confident 
that  your  verdict  will  be  for  them,  for  they  have  justice  and  right 
on  their  side. 


Speech  of  Judge  Porter. 

May  it  Please  Your  Honor  : 

Gentlemen  of  the  Jury  : — I  have  listened  with  a  great  deal 
of  pleasure  to  the  last  argument  made  before  you.  Every  word 
of  it  has  made  a  deep  impression  on  my  mind.  Sometimes,  I  think, 
we  feel  more  interest  in  the  success  of  our  pupils  than  we  feel  in 
our  own.  Certainly  I  feel  that  my  colleague  has  greatly  distin- 
guished himself  by  the  conclusive  argument  he  has  made  here,  both 
on  the  facts  and  the  law  of  this  case.  His  duty  has  been  fully  and 
faithfully  done.  Gentlemen,  your  duty  is  yet  to  be  done,  and  mine 
is  yet  partially  to  be  done;  and  I  confess  to  you  that  protracted 
as  this  trial  has  been,  painful  and  laborious  to  you,  I  must  say  I 
almost  envy  you  the  place  you  hold  in  this  tribunal,  for  you,  Gen- 
tlemen, have  the  power  to  give  back  peace  to  this  distracted  Church. 
One  of  the  most  beautiful  and  expressive  words  in  any  language 
is  the  word  peace.  Most  men  desire  it — desire  to  have  peaceful 
consciences  and  homes,  to  lead  peaceful  lives,  and  to  die  peaceful 
deaths.  One  of  the  first  objects  of  the  Gospel  was  to  bring  peace 
and  good  will  to  men.  One  of  the  most  memorable  savings  of  our 
Saviour  was  this,  "  Peace  I  leave  with  you,  my  peace  I  give  unto 
you."  The  peace  and  harmony  of  this  Church,  for  a  period  of 
nearly  seventy  years,  were  most  remarkable.  You  have  heard  how 
it  was  founded,  and  how  it  has  prospered.  It  seems  to  have  been 
conducted  first  in  an  upper  chamber  of  a  house,  where  one  or  two 
of  the  people  of  God  assembled  for  the  purpose  of  worshipping  Him. 
Then  it  was  held  in  a  school-room,  and  then  taken  to  that  little 
Church  which  Mr.  Stuart  now  owns  in  St.  Mary's  Street.  Thence 
it  was  removed  to  Eleventh  Street,  and  there  it  assumed  the  large 
proportions  which  it  since  has  held  in  the  public  eye.  Its  founder, 
the  elder  Dr.  Wylie,  became  also  a  professor  of  theology  and  a 
teacher  of  youth.  His  name  and  his  reputation  became  known,  not 


50 

crees.  There  is  not,  if  jour  Honor  please,  any  evidence  in  this 
cause  showing  that  the  Relators'  electors  were  signers  of  the 
various  papers  submitted  to  the  Synod  of  1868,  or  were  adherents 
of  these  signers.  For  aught  that  has  appeared  in  proof  the  Re- 
lators were  on  the  first  Monday  of  January,  1870,  elected  by  the 
votes  of  those  who  had  no  more  to  do  with  the  Synod  of  1868  than 
I  had.  I  submit  that  the  Relators  are  bound  to  bring  themselves, 
by  clear  and  positive  evidence,  within  the  terms  of  the  decree 
upon  which  they  rely. 

I  thank  your  Honor,  and  I  thank  you,  Gentlemen  of  the  Jury, 
for  the  patient  attention  with  which  you  have  listened  to  me.  I 
did  not  intend  to  have  taken  up  so  much  of  your  time.  So  far  as 
I  am  concerned,  I  submit  the  Defendants'  case  to  you,  confident 
that  your  verdict  will  be  for  them,  for  they  have  justice  and  right 
on  their  side. 


Speech  of  Judge  Porter. 

May  it  Please  Your  Honor  : 

Gentlemen  op  the  Jury  : — I  have  listened  with  a  great  deal 
of  pleasure  to  the  last  argument  made  before  you.  Every  word 
of  it  has  made  a  deep  impression  on  my  mind.  Sometimes,  I  think, 
we  feel  more  interest  in  the  success  of  our  pupils  than  we  feel  in 
our  own.  Certainly  I  feel  that  my  colleague  has  greatly  distin- 
guished himself  by  the  conclusive  argument  he  has  made  here,  both 
on  the  facts  and  the  law  of  this  case.  His  duty  has  been  fully  and 
faithfully  done.  Gentlemen,  your  duty  is  yet  to  be  done,  and  mine 
is  yet  partially  to  be  done;  and  I  confess  to  you  that  protracted 
as  this  trial  has  been,  painful  and  laborious  to  you,  I  must  say  I 
almost  envy  you  the  place  you  hold  in  this  tribunal,  for  you,  Gen- 
tlemen, have  the  power  to  give  back  peace  to  this  distracted  Church. 
One  of  the  most  beautiful  and  expressive  words  in  any  language 
is  the  word  peace.  Most  men  desire  it — desire  to  have  peaceful 
consciences  and  homes,  to  lead  peaceful  lives,  and  to  die  peaceful 
deaths.  One  of  the  first  objects  of  the  Gospel  was  to  bring  peace 
and  good  will  to  men.  One  of  the  most  memorable  sayings  of  our 
Saviour  was  this,  "  Peace  I  leave  with  you,  my  peace  I  give  unto 
you."  The  peace  and  harmony  of  this  Church,  for  a  period  of 
nearly  seventy  years,  were  most  remarkable.  You  have  heard  how 
it  was  founded,  and  how  it  has  prospered.  It  seems  to  have  been 
conducted  first  in  an  upper  chamber  of  a  house,  where  one  or  two 
of  the  people  of  God  assembled  for  the  purpose  of  worshipping  Him. 
Then  it  was  held  in  a  school-room,  and  then  taken  to  that  little 
Church  which  Mr.  Stuart  now  owns  in  St.  Mary's  Street.  Thence 
it  was  removed  to  Eleventh  Street,  and  there  it  assumed  the  large 
proportions  which  it  since  has  held  in  the  public  eye.  Its  founder, 
the  elder  Dr.  Wylie,  became  also  a  professor  of  theology  and  a 
teacher  of  youth.  His  name  and  his  reputation  became  known,  not 


52 

only  throughout  the  city  in  which  he  lived,  but  throughout  the 
State  and  even  the  nation,  as  a  man  of  ability,  piety  and  learning. 
The  University  of  Pennsylvania  soon  claimed  him,  and  made  him 
one  of  its  professors ;  and  now  some  of  the  most  eminent  men  in 
my  profession  who  received  their  early  instruction  at  his  hands, 
have  come  hereto  talk  with  the  son,  and  remind  him  that  his  father 
was  their  faithful  instructor.  He  seems  to  have  been,  Gentlemen, 
a  most  remarkable  man,  and  to  have  conducted  this  Church  most 
successfully  to  its  high  eminence  ;  and  when  at  the  close  of  life, 
after  so  long  a  ministry,  how  gratifying  it  must  have  been  to 
him,  bending  as  he  was  under  the  weight  of  years,  that  the  peo- 
ple of  his  love  and  his  choice  should  voluntarily  and  unanimous- 
ly take  the  burden  from  his  shoulders  and  lay  it  upon  those  of  his 
son.  Soon,  Gentlemen,  the  reputation  of  the  son  began  to  rival 
that  of  the  father.  He  became  also  a  professor  of  theology,  and 
his  Church  became  one  of  the  very  first  in  this  denomination, 
largely  attended  by  strangers,  attracting  attention  for  the  purity 
of  its  doctrines,  and,  more  than  all,  remarkable  for  the  peace  and 
harmony  which  long  prevailed  in  it.  In  an  evil  hour,  Gentlemen, 
for  I  must  speak  very  plainly — the  interests  involved  here  are 
far  too  large  to  permit  me  to  do  otherwise — in  an  evil  hour, 
Dr.  McMurray,  who  has  evidently  guided  and  directed  this  whole 
proceeding  was  proposed  as  an  Elder  of  the  Church.  One  man 
opposed  him.  Many,  many  years  ago,  when  Mr.  Stuart's  repu- 
tation was  not  so  large  as  it  is  now,  and  he  had  not  the  expe- 
rience he  has  now,  he  objected  to  Dr.  McMurray's  election.  He 
said,  "  Gentlemen,  I  caution  you,"  "beware  !  that  is  a  man  who 
will  give  us  trouble;  do  not  elect  him."  Was  not  that  wonderful 
foresight  ? 

My  learned  friend,  Mr.  Price,  has  dealt  very  kindly  with  Mr. 
Stuart,  and  when  he  referred  to  his  wonderful  efforts  during  the 
war,  and  to  the  fact  that  through  his  exertions  some  six  millions  of 
dollars  had  been  raised  for  the  relief  of  our  suffering  soldiers,  he 
spoke  very  truly  and  told  you  it  was  a  God-given  power.  How 
do  you  think  that  sentence  would  have  sounded  in  the  Synod 
of  1808  ?  A  God-given  power  to  a  man  whom  they  held  to  be 
unworthy  even  to  partake  with  them  of  the  communion  !  Gen- 
tlemen !    There   was   something   in    this   forecast   that   looks   to 


. 


53 

me  quite  as  much  like  God-given  power.  But  for  that  event  to 
guard  against  which,  Mr.  Stuart  raised  his  warning  voice,  the 
same  peace  that  pervaded  this  Church  for  seventy  years  would  to 
this  time  have  remained  unbroken.  The  new  elder  was  not  long 
in  finding  opportunities  of  making  trouble.  A  man  intent  on  a 
thing — as  deliberate  a  man  as  he — as  cool  a  man  as  he — as  capable  a 
man  as  he  of  carrying  out  such  a  resolution  as  he  seems  to  have 
formed  here,  does  not  generally  wait  long  for  an  opportunity. 

It  happened  that  a  young  lady  of  this  Church,  betrothed  to  a 
gentleman  belonging  to  the  Church  of  Dr.  Wadsworth,  then,  as  now, 
one  of  the  most  truly  evangelical  churches  in  this  city,  was  desir- 
ous of  celebrating  with  him  the  communion  of  the  Lord's  Supper. 
As  they  were  about  to  enter  into  a  union  for  life,  they  seemed  to 
have  had  a  desire  to  sit  down  together  and  partake  of  that  sacra- 
ment, which  more  than  all  others  typifies  the  union  of  the  soul 
with  Christ.  Mr.  Stuart  gives  her  a  token  to  be  handed  to  him, 
so  that  he  can  meet  with  her  and  partake  with  her  in  this  great 
ordinance,  established  by  the  Saviour  of  men.  Gentlemen,  this 
was  exactly  in  accordance  with  the  written  law  of  their  book,  that 
those  may  be  admitted  to  occasional  communion  who  would  be  ad- 
mitted to  membership  in  the  Church.  Dr.  McMurray  hears  of  it, 
and  then  comes  the  first  disturbance.  I  want  you  to  mark  how 
these  troubles  commenced ;  and  certainly,  this  part  of  the  case 
introduces  us  to  a  scene  probably  never  paralleled  in  any  Church, 
heathen  or  Christian.  God  grant  that  I  may  never  see  it  in  any 
other  Church. 

The  session  is  soon  called  together.  What  does  the  beloved 
pastor  of  the  Church  say  ?  He  said,  Brethren,  let  us,  in  a  matter 
of  so  much  importance,  implore  the  divine  guidance. 

Dr.  McMurray,  will  you  offer  prayer? 

No,  Sir! 

Mr.  Guy,  Avill  you  lead  us  in  prayer? 

No,  Sir ! ! 

Not  willing,  either  of  them,  even  to  invoke  the  aid  and  the  blessing 
of  the  God  of  the  Church,  in  a  court  of  the  Church,  assembled  on 
a  question  like  this!  Merciful  Heaven!  What  a  scene!  Was 
there  ever  such  a  scene  enacted  before  in  any  Christian  church  ? 

Remember,  gentlemen,  that  these  two  elders   are  the   very  per- 


54 

sons  to  whom,  by  your  verdict,  you  are  asked  to  commit  this 
Church  for  all  time;  men  not  willing,  even,  to  raise  their  hearts 
to  God,  that  He  might  guide  them  through  the  difficulties  which 
were  imperiling  them.  But  there  was  a  man  of  large,  warm,  Irish 
heart  there.  It  had  been  their  custom,  as  it  seems,  to  stand  dur- 
ing prayer.  Mr.  Stuart,  falling  on  his  knees  in  the  presence  of 
the  pastor  and  these  elders,  his  eyes  swimming  with  tears,  so  be- 
sought God  for  His  guidance  and  mercy,  that  when  he  rose  up 
there  were  more  moist  eyes  there  than  his.  Even  our  opponent, 
Mr.  Guy,  said,  Brethren,  I  think  we  had  better  not  go  any  further 
with  this  business.  Gentlemen,  I  would  rather  have  the  large  and 
generous  heart  which  prompted  that  prayer,  beating  in  my 
bosom,  than  to  own  the  costliest  church  that  ever  cast  its  spire  to- 
ward heaven.  That  that  man  should  stand  before  you  as  one  pro- 
nounced by  its  Synod,  unworthy  to  be  a  member  of  this  Church, 
only  illustrates  the  terrible  injustice  which  has  characterized  these 
proceedings. 

Dr.  McMurray  soon  found  another  opportunity.  His  pastor 
was  going  on  successfully  with  his  church.  Dr.  McMurray  was  its 
elder.  There  was  a  pastor  of  another  church  who  found  it  more 
congenial  to  his  nature,  or  more  profitable,  to  write  libels  against 
the  pastor  of  this  Church,  than  to  write  sermons  for  his  own  con- 
gregation. Very  soon  you  find  Dr.  McMurray,  an  elder  of  the 
Church,  on  Sunday  morning,  before  the  sacred  service  had  com- 
menced, directing  the  sexton  to  deposit  these  libels  in  the  seats  of 
the  worshippers,  just  before  the  word  of  God  was  read,  and 
just  before  the  text  was  uttered! — so  that  the  persons  present 
might  read  these  libels  against  their  own  pastor,  before  hearing 
his  prayers  and  his  discourse  !  !  And  this  is  the  man  to  whom 
you  are  asked,  by  your  verdict,  to  commit  this  Church.  Sup- 
pose, that  in  place  of  the  kind  attention  which  you  are  giving 
me,  some  one  had,  just  as  I  was  rising  to  address  you,  stepped 
up  and  put  into  your  hands  a  libel  against  myself.  It  would  not 
be  very  hard  to  find  one.  How  could  you  hear  what  I  am  saying  ? 
What  attention  could  you  give  to  the  argument  I  am  about  to 
address  to  you  ?  Here  was  a  minister  of  God  about  to  address 
his  congregation,  upon  the  most  solemn  of  all  themes  on  which 
mortal  man  can  be  called  to  meditate,   and  his  own  elder,    with 


55 

the  vows  of  his  eldership  upon  him,  could  find  no  better  em- 
ployment on  a  Sabbath  morning,  than  to  circulate  these  atrocious 
libels  against  his  pastor,  so  that  the  moment  the  services  of  the 
sanctuary  were  commenced,  in  place  of  attending  to  the  reading  of 
the  Word  of  God,  and  the  prayer  and  the  sermon,  every  man 
might  have  a  libel  in  his  hand  against  the  preacher  who  was 
to  utter  the  sacred  message.  Where  can  you  find  a  parallel  to  this  'I 
Gentlemen,  it  strikes  me  as  awful.  I  remember  that  some  years 
ago,  a  person  in  this  city,  who  had  uttered  a  libel  of  a  few  para- 
graphs, found  himself  in  the  criminal  court.  I  knew  the  Judge  of 
that  court.  I  knew  him  when  his  head,  now  covered  with  official 
honors,  was  not  as  high  as  the  railing  which  I  touch  there,  but  I 
knew  him  to  be  a  just  man,  a  wise  man,  a  firm  man.  I  watched 
the  course  of  the  trial,  and  the  defendant  got  a  lono;  term  of  ser- 
vice  in  the  penitentiary.  I  met  the  Judge,  soon  afterwards,  and 
said  to  him,  I  congratulate  you  on  the  performance  of  your  duty.  I 
said,  Judge  Brewster,  that  is  the  way  in  which  to  maintain  the 
public  peace.  It  is  these  offences  which  lead  to  bloodshed.  I 
congratulate  you  on  the  noble  discharge  of  your  duty  ;  and  Judge 
Brewster  would  have  made  short  work,  gentlemen,  whilst  he  sat  on 
the  bench  of  that  Court,  with  such  libelers  as  these,  if  they  had 
been  brought  before  him. 

Well,  gentlemen,  there  was  a  collection  to  be  taken  up — a  col- 
lection ordered  by  the  session.  Those  who  are  appointed  statedly 
to  take  up  a  collection  are  obliged  to  take  it  up.  They  have  no 
choice  about  it,  when  the  church  session  orders  it.  There  was  a 
school  connected  with  this  church,  called  the  mission  school  ;  not 
ecclesiastically  connected  with  it,  but  some  members  of  the  church, 
teaching  in  the  school ;  no  ecclesiastical  connection  at  all,  no 
representation  of  the  one  in  the  other.  The  school  was  carried 
on  chiefly  at  the  expense,  as  you  have  heard,  of  Mr.  Stuart.  It 
was  resolved  by  the  session  to  take  up  a  collection  for  the  purpose 
of  feeding  and  clothing  these  poor  children.  Dr.  McMurray  de- 
clined to  take  it  up.  We  have  heard  a  good  deal  here  about  sub- 
ordination and  insubordination.  Here  was  an  elder  of  the  church,  a 
member  of  the  session,  required  to  do  this  thing,  and  sitting  bolt 
upright  in  his  pew,  refusing  to  take  any  part  in  it  whatever. 
There  you   have  insubordination,   gentlemen,    truly.     What  was 


56 

the  reason  this  collection  was  not  taken  up  by  him  ?  Because  they 
sing  hymns  in  the  school.  Well,  they  had  a  right  to  sing  hymns 
there.  This  church  has  no  control  over  the  school.  I  am  in  favor, 
gentlemen,  of  singing  psalms  in  this  church,  because  it  is  the  rule 
of  the  church.  I  am  in  favor  of  singing  hymns  in  other  places 
in  -which  the  rules  of  the  church  do  not  forbid  it.  Dr.  McMurray 
knew  they  had  this  right,  yet  he  saw  here  another  chance  of 
difficulty.  He  was  longing  for  it.  lie  was  watching  from  time 
to  time  to  see  where  and  how  it  might  be  stirred  up.  Think  of 
a  man,  an  elder  in  the  house  of  God,  refusing  to  be  instrumental 
in  taking  up  a  collection  for  the  purpose  of  feeding  and  clothing 
these  poor  children,  simply  because  they  sang  hymns.  Gentle- 
men, suppose  a  man  were  to  come  to  my  house  some  cold  win- 
ter night  for  something  to  eat.  I  say  to  the  servant,  put  up 
some  tea  and  coffee  for  him,  and  some  bread  and  meat.  I  say  to 
the  man  we  are  preparing  something  for  you,  my  good  man,  but 
while  they  are  doing  so,  I  would  like  to  ask  you  a  question.  Do 
you  sing  ? 

Yes,  sir,  I  sing  a  little. 

Do  you  sing  hymns  ? 

Well,  sir,  I  do  not  know  what  they  call  them.  We  get  to- 
gether at  night  and  we  do  sing  something.  I  do  not  know  whether 
it  is  a  psalm  or  a  hymn. 

Repeat  a  verse  to  me: 

How  sweet  the  name  of  Jesus  sounds, 

In  a  believer's  ear  ! 
It  soothes  his  sorrows,  heals  his  wounds, 

And  drives  away  his  fear. 

That  is  what  you  sing,  is  it  ?  But  surely  you  sing  psalms  also. 
Yes,  I  suppose  I  do.  Our  children  in  the  Sunday-school  have 
learned  some.     Let  me  hear  another. 

Nearer,  my  God,  to  thee, 

Nearer  to  thee  ! 
E'en  though  it  be  a  cross 

That  raiseth  me; 
Still  all  my  song  shall  be, 

Nearer,  my  God,  to  thee, 
Nearer  to  thee. 


57 

I  say  to  him,  that  is  enough.  Sir,  you  can  go.  John,  never 
mind  the  tea  and  coffee,  this  creature  sings  hymns  ;  and  my  ser- 
vant shows  him  to  the  door  in  a  cold  winter  night  without  money 
and  without  food.  What  would  you  say  of  me,  gentlemen  ?  What 
do  you  say  of  an  officer  of  a  church  who  deliberately  refuses  to  be 
instrumental  in  taking  up  a  collection  for  the  purpose  of  feeding 
hungry  children,  because  they  sing  hymns?  What  do  you  think 
of  Dr.  McMurray  ?  Is  that  the  man,  to  whom,  by  your  verdict, 
this  church  is  to  be  committed  ?  Then,  gentlemen — Grodhelp  the 
poor  !  I  feel  like  appealing  on  such  a  question  from  earth  to 
Heaven.  I  feel  like  appealing  from  man  to  God  !  I  do  not  be- 
lieve that  God  in  his  good  providence  can  ever  allow  such  a  result 
to  come  about  as  the  success  of  the  plaintiffs  in  this  case.  And 
for  three  years,  there  never  has  been  one  minute  of  time,  in  which 
myself  or  my  colleagues  have  wavered  for  a  moment  in  believing 
that  this  thing  would  come  out,  not  only  exactly  according  to 
law,  but    to  the  principles   of  God's  eternal  justice  ! 

Then,  gentlemen,  comes  this  grand  scheme  of  Dr.  McMurray  and 
Mr.  Guy,  by  which  they  think  they  are  to  obtain  possession  and 
control  of  this  church.  How  does  it  begin  ?  The  Synod  directs 
a  convention  to  be  held  to  consider  the  expediency  of  a  union 
among  Christian  churches,  that  is,  for  the  purpose  of  bringing 
Christian  churches  nearer  together,  making  them  a  little  more 
united.  We  all  expect  to  be  united  in  Heaven  when  we  get  there, 
and  the  thought  seems  to  have  taken  possession  of  this  Synod,  that 
it  would  be  better  that  churches  generallyshould  come  a  little  closer 
together  now, — each  church  retaining  its  psalmody  and  its  other 
distinctive  peculiarities.  Not  a  thought  ever  arose  in  the  mind  of 
any  human  being  until  Dr.  McMurray  put  it  there,  that  there 
was  or  could  be  any  trouble  about  the  psalmody  in  such  a  union. 
Not  at  all.  That  word  union,  gentlemen,  is  a  glorious  word.  You 
know  how  we  plume  ourselves  upon  our  National  Union — how  we 
have  fought  for  it.  It  is  a  glorious  word  wherever  you  use  it. 
Are  you  aware,  gentlemen,  that  there  are  not  two  states  in  this 
Union  whose  laws  are  alike  ?  Yet  we  not  only  have  a  Union,  but 
we  insist  on  maintaining  this  Union,  and  we  say  to  every  man, 
touch  it  if  you  dare.  It  has  cost  blood  enough,  and  treasure  enough 
to  make  it  worthy  of  preservation.     When  we  hear  of  somebody 


58 

down  in  Mississippi  cutting  somebody's  throat,  we  do  not  rush  to 
Washington  and  petition  for  a  dissolution  of  the  Union.  Even 
when  we  hear  of  some  one  down  in  Tennessee  or  North  Carolina 
who  is  guilty  of  that  other  enormous  crime  of  singing  hymns,  we 
do  not  get  up  a  petition  to  dissolve  the  Union.  There  is  such  a 
thing  as  a  union  for  great,  general,  comprehensive  purposes,  with 
distinctive  peculiarities  of  many  sorts.  That  was  what  this  union 
was  intended  to  be,  and  Dr.  McMurray  knew  it  as  well  as  I  know 
it.  He  knew  that  there  never  was  a  thought  in  the  minds  of  those 
who  met  in  that  Convention,  of  laying  a  finger  on  the  psalmody  of 
this  church.  But  it  was  a  grand  opportunity.  It  was  a  grand 
occasion,  to  make  some  of  these  poor  people  think  that  something 
was  going  wrong  about  their  psalmody. 

These  union  meetings  were  held,  and  the  discussions  which  the 
witnesses  mentioned  took  place.  Then  came  the  election  of  the 
sixth  of  January,  1868.  A  very  extraordinary  meeting  certainly 
it  was  : 

An  universal  hubbub  wild, 
Of  stunning  sounds  and  voices  all  confused. 

Gentlemen,  what  produced  it?  There  was  nothing  said 
about  changing  the  Psalmody.  Not  a  word  dropped  from  any 
human  being,  showing  an  intention  on  the  part  of  Dr.  Wylie, 
ever  to  allow  a  hymn  to  be  sung  in  the  religious  services  of 
that  Church.  Never.  I  put  the  question  both  to  him  and  to  Mr. 
Stuart ;  I  put  the  question  that  they  might  come  out  and  say  be- 
fore you,  on  their  solemn -oaths,  what  they  intended  on  that  sub- 
ject, and  you  heard  their  answers.  What  then  brought  that  large 
concourse  together  ?  There  never  was  a  meeting  held  in  that 
Church,  perhaps  never  in  any  church,  in  which  such  an  uproar 
took  place.  There  were  strange  faces  there,  faces  of  men  never 
seen  at  any  previous  meeting  of  the  Church.  They  have  ac- 
counted to  you  for  thirty-six  of  the  one  hundred  and  twenty- 
seven  who  were  shown  to  have  been  illegal  voters;  so  ninety- 
one  were  proved  to  be  illegal  voters.  Not  one  of  you  knows  any- 
thing about  them.     Where  are  they  ?     Who  brought   them  there  ? 

At  that  meeting,  gentlemen,  there  was  one  man  who  was  not 
afraid  of  anything.  His  pastor  had  been  libeled,  and  these  things 
had  been  circulated  for  months.     This  man  went   there   and  said, 


59 

result  as  it  may,  I  am  determined  the  people  of  this  congregation 
shall  know  why  their  pastor  is  libeled,  and  what  he  has  done  worthy 
of  this  abuse.  Pie  went  there  for  the  purpose  of  making,  simply,  a 
statement,  and  offering  a  resolution.  The  first  man  who  opposed  him 
was  Dr.  McMurray.  Think  of  it,  an  elder  of  the  Church,  rising  up  in 
such  a  meeting  to  prevent  a  fellow-elder  from  explaining  the  char- 
acter of  libels  on  his  pastor's  character.  Has  such  a  thing  ever 
been  seen  before  ?  Well,  then  there  was  another  uproar.  There 
was  hissing,  there  was  groaning.  There  were,  according  to  one  of 
the  witnesses,  all  the  noises  of  the  steam  whistle,  as  the  speech  was 
being  made,  and  as  the  resolution  was  about  to  be  put.  Now  mark 
you,  the  resolution  in  regard  to  the  pastor,  passed  that  meeting 
unanimously,  even  Dr.  McMurray  refusing  to  give  a  vote  upon  it. 
That  was  the  time  to  toe  the  mark  !  That  was  the  very  time  !  If 
you  had  uttered  libels  against  a  man,  and  the  libels  had  been  spread 
before  you  in  that  way,  I  think  you  would  not  have  wanted  the 
courage,  if  not  to  justify  them,  at  least  to  say  something  about 
them.  Observe  the  character  of  the  people,  and  the  vote  on  that 
resolution.     It  was  carried  unanimously  in  the  pastor's  favor. 

Do  you  recollect  the  expression  of  one  of  their  witnesses,  Mr. 
Tait,  one  of  the  most  decided  witnesses  against  us?  He  told  his 
story  bitterly,  but  on  coming  to  speak  of  this  meeting,  he  says, 
when  the  resolution  was  proposed,  it  was  carried  unanimously,  be- 
cause "we  all  loved  our  pastor."  I  say,  Behold  hoiv  they  loved 
him!  And  from  that  minute  to  this,  gentlemen,  every  act  of  the 
congregation  would  have  been  unanimous,  but  for  the  course  pur- 
sued by  Dr.  McMurray  and  Mr.  Guy;  two  men  just  as  different 
as  any  men  you  could  find  in  any  community  ;  one,  a  warm- 
hearted, impulsive  man,  carried  away  by  his  feelings  at  the  time; 
rash  and  violent  at  times,  but  seeing  his  error  and  immediately 
acknowledging  his  fault.  The  other  cool  and  deliberate,  for  one 
year,  two  years,  perhaps  ten  years,  intent  at  the  work  of  breaking 
up  this  Church,  of  which  you  are  desired  to  take  part  in  the  con- 
summation. Dr.  McMurray  might  well  have  said  with  Lady  Mac- 
betli,  "  That  which  hath  made  them  drunk,  hath  made  me  bold." 

What  could  that  meeting  do,  I  put  it  to  you  to  say  ;  what  could 
they  do  ?  Could  they  tell  who  had  a  right  to  vote  ?  Where  were 
the  materials  ?     There  was  not  a  pew-book   there,  for  thij   thing 


60 

was  quite  unexpected.  Dr.  Wylie,  the  pastor,  was  not  there,  nor 
the  roll  of  communicants,  to  show  who  were  members  of  the 
Church.  What  could  they  do  ?  Simply  allow  the  persons  there 
to  vote,  and  to  determine  afterwards  whether  the  votes  were  legal. 
A  strange  proceeding  counsel  have  said.  What  else  could  they 
have  done  ?  What  would  you  have  done  if  you  had  been  there  ? 
There  Avas  not  the  means  to  test  a  solitary  vote.  They  appointed 
tellers  ; — what  is  a  teller  ? — a  man  who  tells,  a  man  who  announces, 
and,  therefore,  derivatively,  a  man  who  counts.  The  teller  of  a  bank 
counts  money.  He  does  not  determine  who  shall  open  accounts 
there.  He  does  not  judge.  He  does  not  decide.  He  simply 
counts.  Four  men  were  appointed  tellers — formerly  they  went 
around  with  a  hat — here  they  had  boxes  provided;  the  people 
came  up  and  the  votes  were  received.  What  else  could  they  do? 
I  say  the  most  sensible  thing  they  could  have  done  was  just  to 
pass  the  resolution  which  was  passed,  and  to  say  that  the  votes 
should  be  received,  and  that  they  should  then  be  referred  to  those 
who  only  could  tell  whether  they  were  sound  votes  or  not.  But, 
said  Dr.  McMurray,  that  resolution  did  not  pass.  He  said  he 
suggested  that  anybody  who  wished  information  could  look  at  the 
books.  We  have  twenty-three  witnesses  that  bear  testimony  to 
the  passage  of  the  resolution  ;  and  even  the  eminent  counsel  on 
the  other  side  are  silent  on  that  point.  The  fact  is  proved  with 
such  overwhelming  testimony,  that  you  cannot  doubt  about  its 
passage.  That  resolution  was  to  determine  the  validity  of  the 
election.     It  ran  thus: 

"At  the  conclusion  of  the  balloting,  and  previous  to  the  report 
of  the  tellers,  it  was  on  motion  ordered  that  the  votes  polled  re- 
main in  the  custody  of  the  tellers,  until  the  lists  of  the  parties 
voting  be  submitted  to  the  session  and  Board  of  Trustees  for  their 
examination,  in  order  to  ascertain  whether  all  the  votes  cast  were 
legal,  (protests  against  certain  votes  having  been  entered  during  the 
progress  of  the  balloting,)  and  no  certificates  of  election  to  be  given 
until  it  had  been  ascertained  that  no  illegal  votes  had  been  cast. 
Several  other  motions  were  offered  touching  the  question,  but  were 
afterwards  withdrawn.  It  was  then  asked,  could  not  the  votes  be 
counted,  and  a  report  of  the  same  be  made  to  the  meeting  ?  After 
some  discussion  this  was  finally  agreed  to,  with  the  understanding 


61 

that  the  validity  of  the  election  be  under  the  restriction  imposed 
by  the  former  resolution." 

At  the  next  meeting,  on  the  13th  of  January,  a  report  was  read  of 
what  took  place.  At  this  meeting  there  was  another  uproar.  It 
was  worse,  some  of  the  witnesses  said,  than  any  political  meeting. 
There  were  men  there  who  had  no  interest  in  the  Church,  and  of 
course  every  resolution  offered  was  voted  down  by  the  same  body 
of  ninety-one,  whom  you  heard  of  at  the  former  meeting,  now  de- 
monstrated to  have  been  illegal  voters.  Mr.  Price  said  they 
claimed  a  majority  of  thirty-two.  Where  were  those  ninety-one? 
They  were  not  only  at  the  first  meeting,  but  they  were  at  the  se- 
cond meeting. 

Dr.  McMurray  was  a  physician,  going  from  house  to  house.  He 
had  been  at  this  thing  probably  from  September,  saying  to  every 
member  he  met,  Take  care  of  your  Psalms.  They  are  going  to 
take  away  your  Psalmody-;  but  taking  care  not  to  tell  his  real  ob- 
ject. He  knew  better  than  that.  These  poor  people  did  not  know 
half  the  time  what  they  were  voting  about.  The  cry,  we  are  told, 
was  Psalms  or  Hymns.  Where  did  they  get  that  ?  There  were  no 
Psalms  or  Hymns  in  the  question  ;  we  all  know  that  now.  Where 
then  did  they  get  that  idea  ?  Then  came  that  extraordinary  at- 
tempt on  the  part  of  Mr.  Gordon  to  organize  a  new  Board  ;  a  little 
while  before  midnight,  and  about  as  quietly  as  men  would  be  likely 
to  go  upon  such  an  errand.  Coming  back  about  twenty  minutes  past 
eleven,  and  being  engaged  twenty  minutes,  they  must  have  started 
at  about  11  o'clock  at  night.  They  had  no  key.  You  remember 
the  question  with  which  I  endeavored  to  spear  Mr.  Taylor — Mr. 
Taylor,  you  know,  is  the  son-in-law  of  Mr.  Guy,  and  Mr.  Young  is 
the  son-in-law  of  Dr.  McMurray, — reminding  us  of  the  grace 
which  Boden  Teuch  used  to  pronounce,  night  and  morning,  '-Bless 
me  and  my  wife,  My  son  and  his  wife,  We  four  and  No  more." 
What  a  nice  family  party  it  was  ! — Who  heard  George  Gordon 
give  the  notice?  It  was  evidently  addressed,  if  at  all,  to  men  who 
were  expected  to  hear  it.  I  said  to  Mr.  Taylor,  that  motion  on  the 
validity  of  the  election,  was  under  consideration  by  the  Board  and 
Session,  and  you  knew  it ;  did  you  not  go  to  organize  that  Board, 
no  matter  how  the  committee  might  report  ?  He  stopped,  hesitated, 
and  said,  "Yes,  we  did!"     "Yes,  I  believe  we  did  !"     You  see, 


62 

gentlemen,  what  a  tale  this  tells.  They  knew  what  had  heen 
ilone  at  that  election,  and  that  they  did  not  mean  to  abide  by 
the  action  of  the  referees,  although  they  had  unanimously  referred 
the  question  to  a  tribunal  selected  by  themselves.  This  spurious 
board  had  made  up  its  mind  that  it  would  organize  in  that  place, 
and  have  possession  of  that  building,  no  matter  what  the  committee 
might  report.  I  put  this  to  you,  so  that  you  may  look  at  the  un- 
fairness of  it.  It  shows  what  these  gentlemen  thought  of  their 
own  proceeding.  The  idea  of  such  an  organization  as  this,  is  pre- 
posterous. 

Mr.  Gordon  says  he  gave  the  notice  at  this  meeting,  probably 
selecting  the  very  time  when  the  steam  whistle  was  loudest.  Those 
immediately  about  him  did  not  hear  it.  Mr.  Johnston  had  no  no- 
tice. Mr.  Graham  had  no  notice.  They  got  into  the  Lecture- 
room,  however,  and  very  soon  it  was  discovered  by  the  meeting 
that  there  was  an  attempt  to  organize.  '  Then  Mr.  Stuart  and  a 
few  of  his  friends  went  there.  You  remember  how  the  Gordon 
party  was  described  by  one  of  the  witnesses.  He  said  they  looked 
very  sheepish,  they  looked  very  much  scared  ;  and  that  is  the 
pretended  organization,  from  which  they  dace  the  rights  they  claim 
in  this  case. 

In  the  meantime,  the  Board  and  Session  were  busy  at  the  inves- 
tigation. They  had  one  difficulty  to  contend  with,  they  had  not 
the  ballot  boxes.  Why  had  they  not  the  ballot  boxes  ?  Because 
one  or  two  tellers  appointed  by  the  other  side  had  got  hold  of 
them,  and  would  not  produce  them.  Why  would  they  not  produce 
them '(  They  were  determined  that  the  board  and  the  session 
should  not  see  these  ballot  boxes,  and  up  to  this  minute  of  time 
they  have  not  produced  them  in  evidence  in  this  case.  Part  of 
the  tickets  were  written,  and  part  of  them  printed,  and  although 
the  name  of  the  voter  was  not  on  each  ticket,  the  handwriting  on 
the  ticket  might  have  been  proved,  and  this  would  have  af- 
forded a  clue  to  those  who  had  deposited  the  illegal  tickets. 
That  was  the  reason  why  they  persistently  refused  even  to  let 
■the  board  or  session  see  a  ballot  that  had  been  cast.  Can  you 
doubt  the  statement  of  Mr.  Stuart  when  he  says  he  had  spent  a 
most  laborious  month  in  examining  these  names  ?  They  were  read 
in  the  presence  of  Dr.  McMurray  in   the  session.     He  heard  the 


63 

whole  list  read  over  distinctly  as  names  of  illegal  voters,  and  was 
not  able  to  name  one  man  on  that  list  who  had  the  right  to  vote, 
not  one  !  Of  course  then  the  election,  according  to  the  resolution, 
was  invalid. 

At  the  meeting  in  February,  the  reports  were  made  and  the 
question  of  acceptance  came  up.  Gentlemen,  what  else  could  they 
do  than  accept  the  reports  ?  It  was  a  special  reference  to  a  spe- 
cial tribunal  to  determine  a  particular  fact, — whether  or  not  illegal 
votes  had  gone  into  the  boxes.  Suppose  you  had  a  controversy 
with  a  neighbor.  Suppose  Mr.  Lord  and  Mr.  Taylor  had  a  con- 
troversy with  regard  to  a  particular  matter  of  business,  and  they 
were  to  say  we  shall  refer  it  to  Mr.  Welsh  and  to  Mr.  Young  and 
to  Mr.  Potter,  now  sitting  beside  them  on  the  jury.  Suppose 
you  had  signed  an  agreement  to  that  eifect.  A  report  comes  in. 
What  can  you  do  but  accept  it?  One  party  or  the  other  is  always 
disappointed  in  every  such  reference.  The  word  "  accept"  is  differ- 
ent from  the  word  "receive."  When  a  man  is  invited  to  dinner, 
he  says,  Mr.  Smith  has  the  pleasure  of  accepting  such  and  such  an 
invitation.  It  does  not  mean  that  he  merely  accepts  the  note;  he 
does  more  than  that ;  he  accepts  the  dinner.  A  man  fails  in  business, 
he  says,  I  offer  you  forty  per  cent,  in  compromise  of  your  claim,  and 
begets  an  answer;  your  proposition  is  accepted.  What  does  that 
mean  ?  That  the  debtor  has  simply  got  the  information  that  his  letter 
has  been  received  by  the  creditor  ?  Would  you,  as  a  debtor  or  credi- 
tor, understand  it  in  that  way  ?  Take  the  case  of  a  young  gentleman 
who  writes  a  note  to  a  lady.  He  writes  one  note,  tears  that  up  ; 
writes  another,  tears  that  up  ;  writes  another  and  remains  in  fear 
and  trembling  until  he  gets  an  answer  which  says  to  him  in  sub- 
stance that  his  proposition  is  accepted.  What  does  that  mean  ? 
That  his  letter  is  accepted  ?  no,  that  he  is  accepted.  And  one  of 
these  young  ladies  who  has  ever  written  such  a  note,  would  never 
believe  you  if  you  told  her  that  she  had  simply  accepted  the  note 
but  had  not  accepted  him.  There  is  much  force  in  the  word  accepted. 
This  meeting  did  as  it  seems  to  me,  exactly  what  they  ought  to 
have  done.  In  these  resolutions,  they  appointed  a  particular  tri- 
bunal for  the  purpose  of  settling  a  fact.  When  the  report  came 
they  could  not  have  done  otherwise  than  accept  it.  Take  the  case 
of  a  claim  against  an   Insurance  Company.     There  is  a  difficulty 


G4 

about  the  amount  of  the  loss,  and  the  matter  is  referred  to  a  referee, 
and  he  determines  you  must  do  so  and  so.  What  can  you  do  but 
accept  his  report?  Well,  gentlemen,  these  reports  were  accepted. 
Why  did  we  not  give  the  names  of  the  illegal  voters  ?  I  will  tell 
you.  You  have  seen  an  illustration  of  it.  Here  was  a 
woman — a  widow — who  voted  at  this  election,  as  she  thought,  ac- 
cording  to  the  rules  of  the  church.  She  had  no  right  to  vote,  for  she 
had  not  paid  anything  for  the  support  of  the  church  for  a  long  time; 
a  respectable,  pleasant-looking  lady  she  was,  reminding  us  of  that 
widow  who  is  mentioned  in  Scripture  as  having  given  the  two  mites. 
I  put  the  question  as  mildly  to  her  as  I  could,  with  the  highest 
consideration  for  her  feelings.  I  said,  my  good  Madam,  have  you 
paid  any  pew  rent  ?  I  have  not,  sir,  she  said.  I  was  poor.  I  had 
three  children  to  support,  and  it  was  generally  understood  that  I 
should  not  pay.  The  idea  of  putting  the  name  of  that  good  wo- 
man on  the  list  and  bringing  her  here,  and  submitting  her  to  ex- 
amination as  if  she  had  committed  a  fraud  on  the  church,  would 
have  been  the  extreme  of  cruelty.  Therefore  they  did  not  report 
the  names,  but  the  committee  told  Dr.  McMurray  personally  in 
the  presence  of  the  session,  that  they  had  examined  the  list.  That 
the  list  was  open  to  him,  open  to  any  of  the  committee,  open  to 
anybody  who  felt  that  they  were  aggrieved.  Was  not  this  a  sensi- 
ble and  a  kind  mode  of  procedure? 

But  why  did  the  board  hold  over?  What  else  could  they  do  ? 
Suppose  the  stockholders  fail  to  elect  directors  of  a  bank  at  the 
appointed  time.  What  are  the  old  directors  to  do  ?  Are  they  to 
run  out  of  the  bank  or  leave  the  deposits  in  the  street  ?  Suppose 
a  Rail  Road  Company  do  not  elect  a  board  of  Managers  ;  are  the 
cars  to  stop  on  that  account  ?  What  is  to  be  done  ?  Why  the 
old  board  hold  over. 

Well,  gentlemen,  you  see  this  chief  actor,  Dr.  McMurray,  up  to 
this  point,  after  this  long  effort,  had  been  defeated.  H"e  seems 
then  to  have  adopted  Satan's  conclusion  when  expelled  from 
Heaven  : 

"  What  tho'  the  field  be  lost? 

All  is  not  lost ;  the  unconquerable  will,  etc." 

He  was  not  going  to  stop  there.     He  had  been  defeated  at  the 


65 

meeting  in  which  the  libels  on  the  pastor  were  produced.  He  had 
been  defeated  at  the, election.  He  had  been  defeated  notwith- 
standing the  acts  of  these  illegal  voters.     What  was  he  to  do  ? 

Gentlemen !  I  cross-examined  Dr.  McMurray  for  hours,  as  he 
stood  there.  Did  you  know  the  object  of  that  ?  Did  you  expect 
that  I  intended  to  prove  anything  by  Dr.  McMurray  ?  If  you  did 
you  were  mistaken.  It  was  just  the  contrary.  It  was  done  that 
I  might  hold  Dr.  McMurray  up  before  this  jury  for  a  sufficient 
length  of  time,  to  enable  them  to  see  the  material  of  which  the 
man  is  made — a  blinded  man,  a  prejudiced  man,  his  natural  sense 
and  reason  utterly  perverted  by  the  long  cherished  desire  of  his 
heart,  that  of  upturning  everything  in  this  church;  so  that  he  was 
scarcely  capable  of  giving  a  clear  answer  to  any  one  question  that 
was  asked  him.  You  may  remember  that  I  tried  him  thus  :  Dr. 
McMurray,  who  wrote  the  remonstrance  which  you  took  up  to  the 
Synod  ?  "I  wrote  the  remonstrance."  Did  you  write  the  whole 
of  that  remonstrance?"  "Well!  I — ,  No — ,  I  got  the  form  from 
Dr.  Steel."  (A  gentleman  who  has  been  very  prominent  in  this 
suit  by  the  way).  The  form  consisting  of  these  words,  "  To  the 
Reverend  fathers  and  brethren."  That  is  what  the  form  consisted 
of.  Well  !  who  wrote  it,  Dr.  ?  Who  wrote  the  first  paragraph  ? 
"  Oh  !  Dr.  Steel  wrote  part  of  the  first  paragraph."  Who  wrote 
the  second  ?  "  Well,  I  wrote  this — Dr.  Steel  wrote  that."  Who 
wrote  the  third  ?  who  wrote  the  fourth  ?  and  so  it  went  down 
to  the  eighth  and  last.  Thus  you  find  the  hand  of  a  pastor  of  a 
neighboring  church  employed  with  that  of  an  elder  of  this  church 
in  getting  up  a  remonstrance  to  be  circulated  secretly  among  the 
members  of  this  church,  for  the  purpose  of  splitting  it  to  pieces. 
What  would  you  say  if  I  got  up  a  paper  and  circulated  it  amoncr 
the  clients  of  my  friend,  Judge  Brewster,  and  quietly  produced  it 
in  court  against  him  some  Saturday  morning  ?  Gentlemen  ! 
It  seems  to  me  this  was  an  extraordinary  act  on  the  part 
of  the  pastor  of  a  neighboring  church,  and  considering  that 
there  was  scarcely  one  single  word  of  truth,  as  I  will  show  you, 
in  the  remonstrance,  what  a  fearful  act  it  was  !  What  I  have  to 
say  of  Dr.  Steel  on  that  point  is  that  I  think  he  had  far  better 
have  been  writing  sermons  for  his  own  people.  He  was  the  modera- 
tor afterwards  of  the  Synod  that  suspended  Mr.  Stuart,  taking 
5 


G6 

mighty  good  care  to  vote  both  against  him  and  this  church,  at 
every  stage  in  the  progress  of  the  business.  ,.  But  how  was  the  re- 
monstrance signed  ?  Signed  in  blank,  sent  to  a  large  number  of 
these  poor  people  and  their  signatures  obtained  without  their  ever 
having  seen  the  remonstrance,  a  paper  containing  the  most  atro- 
cious libels  against  their  own  pastor  and  friends.  There  was  one 
person  who  signed  it  at  Dr.  McMurray's  house.  lie  tells  you  he 
did  not  hear  anything  said  about  Dr.  Wylie  when  it  was  read. 
Not  a  word  did  that  man  hear  of  what  now  appears  to  have  been 
in  the  paper — he  signed  it  at  Dr.  McMurray's  house,  and  in  his  own 
office,  in  the  presence  of  two  or  three  people  ;  others  signed  it  on 
slips  of  paper,  and  they  told  you  they  had  not  time  to  read  it.  It 
was  signed  by  persons,  50  or  60  of  whom  came  back  to  the  church, 
the  moment  they  got  at  the  truth. 

Gentlemen,  if  ever  a  paper  was  gotten  up  on  false  pretenses, 
this  was.  Suppose  a  promissory  note  was  exhibited  to  you  signed 
by  six  persons,  and  you  were  told  that  four  of  them  who  had 
signed  it,  knew  nothing  about  it,  would  you  receive  such  a  paper  ? 
would  you  act  upon  it  ?  would  you  consider  it  worth  anything  ? 
If  ever  men  were  grossly  imposed  upon,  this  Synod  was  so  im- 
posed upon  when  this  paper  was  produced  there.  I  can  not  be- 
lieve there  is  one  man  who  would  have  cast  his  vote  against  this 
church  in  this  Synod,  if  he  had  known  tbe  facts  that  have  come 
out  here. 

Well,  the  remonstrance  was  gotten  up  and  signed.  It  was 
another  thing  to  adopt  it.  How  was  that  to  be  accomplished  ? 
How  was  it  to  be  got  through  the  Synod  ?  It  was  to  be  got 
through  by  what  is  known  in  political  life  as  electioneering.  A 
correspondence  was  to  be  inaugurated.  The  members  were  to 
be  plied  with  publications  and  documents.  Men  living  one 
thousand  miles  out  in  the  West,  who  knew  nothing  of  this 
church,  were  to  be  thus  influenced.  Dr.  McMurray,  I  said,  Did 
you  apply  to  Mr.  A.  on  the  subject?  "Mr.  A. — I  do  not  re- 
member." Going  over  the  members  of  the  Synod,  I  said,  Did 
you  write  to  B.  on  the  subject?  "  B. — I  don't  remember."  Did 
you  write  to  C.  ?  "  C. — I  don't  remember."  Did  you  write  to 
D.  ?  "  It  is  likely,  I  don't  remember."  Thus  we  went  through 
the  list.  I  could  not  get  from  him  the  name  of  a  single  man  to  whom 


67 

he  had  written,  and  we  knew,  beyond  contradiction,  that  he  had 
written  to  most  of  them,  making  himself  in  the  eyes  of  the  mem- 
bers of  the  bar  perfectly  ridiculous,  because  the  phrase,  "I  do  not 
remember,"  has  become  a  by-word  with  us.  In  the  case  of  Queen 
Caroline,  certain  Italians  were  brought  to  testify,  and  they  thought 
their  safest  course  was  neither  to  admit  nor  deny  anything  that 
was  asked  them,  and  for  days  they  were  put  through  a  series  of 
questions  in  regard  to  the  acts  which  the  Queen  was  said  to  have 
committed  in  Italy,  to  which  one  answer  only  was  returned. 
"Non  mi  ricordo "  became  memorable  words.  Consequently, 
when  we  hear  a  man,  who  has  been  a  chief  actor  in  a  scene,  an- 
swering 30,  40,  or  50  times  he  does  not  remember,  he  becomes 
ridiculous  in  the  eyes  of  a  court.  What  a  most  extraordinary 
scene  it  was !  After  all  this  electioneering  ;  after  all  this  cram, 
ming  of  the  members  of  the  Synod  ! 

The  remonstrance  somehow  came  before  the  Synod,  and  then 
commenced  the  enactment  of  such  a  scene,  as  may  God  in  His 
mercy,  avert  from  any  other  of  these  Church  courts.  At  the 
modern  feasts  to  which  we  are  sometimes  invited,  which  we  call 
dinners,  before  the  heavier  and  more  solid  viands  are  brought  on, 
the  palate  is  treated  to  a  little  bonne  boucJie ;  a  delicate 
oyster ;  a  highly  flavored  soup ;  some  little  condiment  or 
other.  There  was  a  great  tragedy  to  be  enacted  here,  in  regard 
to  this  remonstrance.  They  might  not  be  quite  ready  for  it  at 
once,  and  accordingly  Mr.  Geo.  II.  Stuart's  case  is  introduced 
first.  Mr.  Stuart  tells  you  he  went  to  the  Synod  as  profoundly 
ignorant  of  a  contemplated  attack  upon  him,  as  if  a  personal  as- 
sault had  been  made  upon  him  in  the  witness  stand.  These  gen- 
tlemen say  that  he  said  he  was  known  all  over,  and  they  dare  not 
touch  him.  If  he  was  known  at  all,  I  presume  he  was  known  all 
over.  His  head  is  certainly  known  to  everybody.  You  saw  the 
clear,  prompt  and  quick  answers,  that  were  given  to  every  ques- 
tion that  could  be  put  to  him.  They  were  not  such  as  these,  "  It 
is  likely ;"  "  I  did,  perhaps  ;"  "  I  do  not  know  ;"  "  I  have  no  know- 
ledge;" "  I  do  not  remember."  His  head  is  pretty  well  known  ; 
I  think  his  heart  is  pretty  well  known  also  to  those  who  know  him 
at  all.  Mr.  Stuart  did  say  that  he  had  taken  a  hymn  book  in 
his  hand  when  worshipping  in  another  congregation  ;   but  the  fact 


68 

came  out  here,  as  you  heard  that  he  cannot  sing  at  all  !  He 
has  admitted  that  he  makes  a  noise,  which  by  courtesy  people 
sometimes  call  singing.  There  is  not  a  word  of  testimony  from 
any  witness,  not  a  syllable,  that  in  doing  this  he  violated  any 
rule  of  this  church.  If  there  is,  I  should  like  to  see  it.  He  said, 
when  I  go  to  other  churches  I  take  part  in  singing  hymns.  I  wish 
people  would  sing  them  oftener.  There  is  a  power,  gentlemen,  in 
these  hymns,  that  you  seldom  find  in  written  discourses.  Thia 
church  has  not  forbidden  the  singing  of  hymns  in  other  churches. 
Mr.  Stuart  said  he  had  done  that  thing  in  other  churches,  but  as 
to  having  sung  hymns  in  the  worship  of  his  own  church,  he  put 
himself  on  his  denial  in  the  face  of  the  Synod.  There  is  his  writ- 
ten denial  : 

"  I  hereby  solemnly  deny  each  and  all  of  the  allegations  and 
charges  contained  in  the  preamble  and  resolutions  offered  by  Rev. 
A.  G.  Wylie,  in  manner  and  form  as  they  are  alleged,  and  I  pro- 
test against  the  right  of  Synod  to  pass  such  preamble  and  resolu- 
tions, and  ask  that  this  my  denial  and  protest  be  entered  on  the 
minutes." 

The  moment  the  charge  was  made  against  him,  he  denied  it.  Tell 
me  he  came  in  and  admitted  the  charge !  With  this  paper  before 
you,  that  is  absurd.  Well,  gentlemen,  there  was  no  notice.  He  was 
entitled  to  three  citations.  There  was  no  trial.  Suppose  I  should 
stand  up  in  this  court  and  say  of  a  juror  that  he  had  been  guilty 
of  some  offence  against  the  law,  and  before  the  man  left,  the  court 
should  put  him  on  his  trial.  He  makes  a  solemn  denial  and  files 
it  on  the  records  of  the  court,  that  he  has  never  done  such  an  act. 
Not  a  single  witness  examined  ;  not  a  particle  of  testimony  taken  ; 
and  the  record  of  the  court  is  made  on  that  man's  case,  in  the  books 
of  the  court,  suspending  him  as  a  juror.  What  would  you  think 
of  a  court  that  would  do  an  act  like  that  ?  It  happened  that  Mr. 
A.  Gr.  Wylie,  the  present  pastor  of  this  seceding  church,  was  in 
that  session  of  the  Synod.  You  have  heard  Mr.  Stuart's  sickness 
described.  You  have  heard  how  he  suffers  from  Asthma.  Some- 
times it  has  happened,  as  you  have  heard  from  the  testimony, 
that  for  ten  or  twelve  days  and  nights  together  he  has  been  held 
up  by  two  men,  one  on  each  side  of  him — unable  to  lie  down  or  sit 
down.  It  is  a  most  horrible  malady.  Each  breath  is  expected  to  be  the 


last.  I  do  not  know  whether  you  have  heard  of  the  way  they  have 
in  China  of  taking  a  man's  life  for  certain  offences.  It  is  to  pre- 
vent him  from  sleeping.  They  have  persons  appointed  to  keep 
him  awake,  and  by  the  13th  day  the  man  usually  dies.  Asthma  is 
a  horrible  malady.  Mr.  Stuart  was  suffering  with  it  intensely  at 
the  time  in  the  hotel,  in  the  hands  of  an  eminent  physician.  One 
of  the  members  of  the  Synod  arose  in  his  place,  and  informed  the 
Synod — that  this  was  a  sham — that  it  was  all  pretense;  and  that 
gentleman,  Mr.  A.  G.Wylie,  subsequently  took  the  prize  by  becoming' 
pastor  of  this  church  in  the  Horticultural  Hall,  and  continues  to  be 
their  pastor,  up  to  this  time  !  Why,  gentlemen,  there  was  not  a 
child  in  Pittsburgh,  that  could  not  have  told  these  people  of  the 
enormity  of  their  proceeding.  If  they  had  expelled  Mr.  Stuart 
from  his  seat  as  a  member  of  the  Synod,  that,  anybody  could  have 
understood.  We  might  have  seen  the  injustice  of  it,  but  we  could 
have  seen  some  sort  of  approach  to  reason  in  it.  They  say  nothing 
at  all  of  his  right  to  sit  as  a  member  of  Synod,  and  suspend  him  as 
a  member  of  the  church  !  I  put  the  question  to  their  witnesses  time 
after  time ;  you  say  your  church  has  existed  300  years ;  is  there 
such  an  act  to  be  found  in  its  records  from  the  hour  of  its  birth  down 
to  the  present  time  ?     Every  one  of  them  said  no. 

Gentlemen  !  It  was  an  act  of  monstrous  folly.  And  what  has 
been  the  consequence  ?  There  was  a  venerable  man  who  arose  in 
the  Synod  and  said,  Brethren,  this  act  will  split  your  church  to 
pieces.  He  was  right.  The  Presbytery  of  Pittsburgh  has  gone 
off  to  another  denomination,  and  Dr.  McMaster,  as  you  have  heard, 
the  ringleader  in  all  this  terrible  business,  unless  I  ought  to  accord 
that  high  distinction  to  Dr.  McLeod,  has  gone  off  with  his  whole 
party  to  the  United  Presbyterians.  Thus  you  see  the  folly  of  the 
act.  They  have  split  their  church  in  twain.  And  for  what  ?  His- 
tory will  inquire  why  such  a  disruption  took  place.  Was  there 
any  difference  about  doctrine  ?  Was  there  any  difference  about  the 
mode  of  worship?  Was  there  any  dispute  about  whether  psalms  or 
hymns  were  to  be  sung?  Not  at  all.  It  is  one  of  the  most  ex- 
traordinary facts,  in  this  extraordinary  business,  that  that  Synod 
split  this  church  to  pieces,  when  there  was  not  one  single  doctrine 
of  the  church  or  one  of  its  testimonies  in  dispute.  Is  not  that  a 
remarkable  fact  ?     The  Pittsburgh  Presbytery  going  off;  Dr.  Mc- 


70 

Master  and  bis  party  going  off;  trouble  produced  in  this  churcb 
for  years, — and  not  a  single  principle  in  dispute.  Is  not  this  tbe 
most  extraordinary  tbing  tbat  ever  happened  in  tbe  bistory  of  any 
cburch  ? 

Well,  gentlemen,  how  does  this  bear  on  tbe  question  in  this  case  ? 
I  will  tell  you  how  it  bears  on  it,  though  I  am  sure  I  cannot  tell  you 
in  any  clearer  terms  than  Mr.  Patterson  has  told  you.  The  Attorney 
General  seems  to  have  labored  under  some  difficulty  on  this  point. 
He  has  announced  that  be  did  not  know  tbat  he  would  ascertain  until 
the  day  of  judgment,  how  Mr.  Stuart's  suspension  bears  on  this  case. 
He  can  ascertain  a  little  sooner  than  that.  The  Presbytery  met 
and  took  action  in  regard  to  the  proceeding.  They  could  not  have 
done  otherwise.  What  could  the  Presbytery  have  done  less  ?  The 
business  of  these  gentlemen  who  are  preaching  the  gospel,  is  to 
bring  persons  into  the  church,  not  to  drive  persons  out  of  the 
church.  If  the  Synod  could  meet  and  without  notice  put  men  out 
of  the  cburch  at  its  own  will,  why  admit  them  ?  Tbe  members  of 
Presbytery  were  bound  to  act  in  self-defence.  They  were  bound 
to  take  action  of  some  kind.  They  simply  said  to  themselves,  if 
this  Synod  will  meet  and  without  any  notice,  without  any  offence, 
without  any  difference  of  doctrine,  without  any  trial,  turn  out 
members  from  the  church,  what  is  the  use  of  our  attempting  to 
«  bring  people  into  the  church  ?  Here  was  an  act,  unprecedented  in 
its  history,  and  unauthorized  by  its  book.  Therefore  tbe  presby- 
tery simply  suspended  its  relations  to  the  Synod,  remaining  in  the 
Synod,  resolving  to  remain  in  the  Synod,  but  condemning  the  act 
which  the  Synod  had  thus  performed,  and  resolving  that  these  re- 
lations should  remain  suspended  until  the  Synod  had  receded  from 
tbe  error  into  which  they  had  fallen. 

Well,  gentlemen,  very  soon  after  this,  the  Commission  was  let 
loose.  I  have  called  it  more  than  once  in  these  discussions  a  packed 
commission.  Do  you  observe  that  there  was  not  on  that  commis- 
sion a  man  who  had  voted  in  favor  of  Mr.  Stuart  ?  Not  a  man  ! — 
The  churcb  itself  was  marked  as  the  next  victim.  Do  you  think 
that  was  accident  ?  No,  gentlemen,  it  was  all  a  part  of  one  general 
plan.  They  did  not  dare  to  put  on  that  commission  one  man  who 
had  shown  a  friendly  disposition  to  Mr.  Stuart.  Suppose  I  were  to 
come  into  this  court  with  one  of  you  as  my  client,  and  you  were 


71 

to  see  on  the  jury  twelve  men,  every  one  of  whom  had  given  a  vote 
against  you  in  some  lodge,  in  some  institution,  in  some  society  of 
which  yo'i  were  a  member.  Would  you  think  that  a  matter  of  acci- 
dent ?  What  sort  of  chance  had  this  church  with  this  commission  ? 
It  was  not  intended  that  it  should  have  any  chance.  Its  dis- 
memberment was  a  foregone  conclusion.  The  matter  was  arranged 
at  Pittsburgh,  and  these  parties  came  here  to  consummate  the 
work.  At  that  time  there  were  five  hundred  corporators  of  this 
church  who  were  reported  as  paying  pew  rent,  or  who  were  in  com- 
munion with  the  church.  Of  these  five  hundred,  six  only  received 
notice.  The  commission  did  their  work.  They  reported  to  the 
Synod  and  they  got  it  confirmed. — It  seems  that  during  the  pro- 
gress of  the  business,  Dr.  Wylie  made  some  allusion  to  it  from  his 
pulpit.  Dr.  Wylie  was  at  a  meeting  of  the  session,  at  which  Dr. 
McMurray  presented  a  paper  with  regard  to  Mr.  Stuart.  That 
paper  related  to  the  shaking  of  the  fist  as  you  remember.  Dr. 
Wylie  tossed  it  back  to  Mr.  Young,  who  had  presented  it.  Mr. 
Young  says  it  struck  him.  He  has  even  worked  himself  into  the 
belief  that  if  it  had  been  a  sword,  it  would  have  cut  off  his  head. 
Just  as  if  he  was  some  modern  John  the  Baptist,  and  Dr.  Wylie 
was  some  modern  Herod,  and  that  Mr.  Young's  devoted  head  was 
to  be  cut  off  and  sent  in  a  charger  to  somebody.  Mr.  Young  said 
it  actually  struck  him  just  over  his  heart,  that  heart  which  he 
seems  to  suppose  the  repository  of  so  many  generous  emotions,  in 
which,  however,  a  large  part  of  all  this  persecution  and  all  this 
trouble,  seem  to  have  originated.  Dr.  Wyl>^  noticed  these  mattei-s 
from  his  pulpit,  and  in  such  a  way  as  I  think  very  few  men  could 
have  noticed  them.  When  he  was  proceeding  to  speak  on  the 
subject,  Mr.  Guy  immediately  rose.  It  would  have  been  incredi- 
ble, if  it  had  not  been  proved — but  Mr.  Guy  rose  and  said,  "  That 
is  a  falsehood."  Now  think,  what  would  a  man  of  the  world  have 
done  ?  What  would  you  have  been  tempted  to  do  ?  In  the  pres- 
ence of  his  entire  congregation,  an  elder  rising  and  saying,  that 
is  false  !  Dr.  Wylie  replies,  "  Sir,  I  am  the  only  person  entitled 
to  speak  here  ;  if  you  wish  to  make  any  remarks  you  must  do  so  in 
some  other  place."  Could  any  man  have  replied  more  mildly  ? 
When  this  remonstrance  came  about,  Dr.  Wylie  read  it  to  his  con- 
gregation.     Read  every  word  of  it  to  his  congregation,  and   then 


72 

said,  If  I  am  guilty  of  that  of  which  I  am  charged,  I  ought  to  he 
in  the  Penitentiary,  and  certainly  those  who  signed  that  remon- 
strance will  not  expect  me  to  visit  them."  Could  any  man  have 
replied  more  temperately  to  an  attack  upon  him  ? 

Gentlemen,  there  is  one  portion  of  a  discourse  which  he  de- 
livered very  soon  after  that,  which  I  will  read : 

"And  now,  Brethren,  for  the  first  time  in  our  pastorate,  permit 
us  to  address  to  you  a  personal  appeal.  No  one  surely  can  feel  a 
deeper  interest  in  your  welfare  than  we  do.  Our  loved  and  hon- 
ored father  was  your  first  pastor,  and  continued  so  for  nearly  fifty 
years.  We  have  felt  as  if  he  had  left  to  us  in  you  a  most  precious 
trust,  which  we  should  deliver  unimpaired  to  the  one  who  may  suc- 
ceed us.  How  can  we  bear  to  think  of  the  flock,  'the  beautiful 
flock,'  for  which  he  labored  and  prayed  so  earnestly,  so  faithfully, 
so  long,  becoming  divided  and  destroyed?  Ourselves,  your  own 
child  and  offspring,  born  among  you,  with  you  in  the  sanctuary 
from  infancy,  a  pupil  in  your  Sabbath-school  the  first  day  it  was 
organized,  afterwards  a  teacher  there — permitted  more  than  thirty 
years  ago  to  sit  down  with  you  at  the  Saviour's  table  to  commemo- 
rate His  dying  love,  called  by  your  unanimous  voice  to  be  your 
pastor  nearly  twenty-five  years  ago,  abouc  half  our  life- time — ever 
heard  by  you  with  respect,  and  received  in  your  houses  with  affec- 
tion— ever  sustained  by  you  with-  most  generous  kindness — ever 
receiving  the  greatest  forbearance  for  our  many,  many  deficiencies 
and  faults — we  have  felt  that  you  were  '  our  joy  and  our  crown.' 
And  shall  unfounded  suspicions,  shall  any  misconception  of  mo- 
tives and  purposes  destroy  our  confidence  and  love  ? — alienate  and 
separate  those  who  might  still  be  as  harmonious  and  as  peaceful 
and  as  happy  as  they  have  been  before  !     May  God  forbid  !" 

It  does  my  very  heart  good  when  I  see  a  Christian  minister  act- 
ing in  that  way.  This  gentleman  holds  a  very  important  position 
in  a  religious  sense  as  well  as  in  a  social  sense,  and  when  I  see  a 
man  thus  temperately  receiving  such  attacks  upon  him,  when  I  see 
such  replies  as  that  to  the  most  outrageous  insinuations,  see  a 
man  insulted  in  the  presence  of  his  whole  people,  and  then  re- 
plying so  mildly,  I  can  but  wish  that  some  of  these  persons  here 
as  plaintiffs  would  imitate  his  conduct.  It  seems  to  have  been 
literally  true,  that  when  he  was  reviled,  he  reviled  not  again,  when 


73 

he  suffered,  lie  threatened  not,  hut  committed  himself  to  him  that 
judgeth  righteously.  I  say,  gentlemen,  this  was  conduct  worthy 
of  a  Christian  minister. 

[Here  the  Court  took  a  recess.] 

Mr.  Porter,  resuming,  said  : 

It  is  admitted  that  but  for  this  Rescript,  or,  as  they  call  it,  Reso- 
lution of  the  Synod,  our  opponents  would  have  no  case  at  all,  and 
we  shall  not  soon  forget  the  air  of  triumph  with  which  they  pro- 
duced it  here.  It  seemed  at  first  as  if  the  Attorney  General  thought 
they  had  only  to  produce  this  extraordinary  paper  to  settle  the 
whole  controversy.  I  have  shown  you,  sir,  the  manner  in  which 
this  result  was  obtained.  As  to  the  decree  itself,  the  counsel  on 
each  side  seem  to  entertain  widely  different  opinions  of  it.  If  the 
doctrine  maintained  apparently  by  the  Attorney  General  and  Mr. 
Price  were  true,  that  a  party  had  nothing  to  do  but  simply  to 
produce  the  decree  of  an  Ecclesiastical  Court  in  a  civil  tribunal, 
and  if  the  Ecclesiastical  Court  were  the  party  to  judge  of  its  own 
powers,  the  civil  courts  might  be  shut  up.  If  a  Synod,  meeting  a 
thousand  miles  off,  composed  I  think,  as  it  is  now,  of  twenty  to 
thirty  men,  without  trial  and  without  testimony,  coming  to  a 
conclusion  in  regard  to  a  large  and  valuable  property,  can  pro- 
duce it  before  a  civil  tribunal,  and  say  there,  the  thing  is  decided 
and  we  are  to  be  the  judges  of  the  effect  of  our  own  decision,  what 
would  be  the  use  of  civil  courts  ?  What  would  be  the  use  of  the  pro- 
vision in  our  constitution,  which  declares  that  the  judicial  power 
of  the  State  shall  be  committed  to  certain  judges  elected  and  com- 
missioned in  a  certain  way  ?  Sir,  I  say,  the  law  of  Pennsylvania 
utterly  repudiates  that  doctrine,  and  thus  we  have  steered  clear  of 
the  very  difficulties  which  have  surrounded  many  of  the  courts  of 
other  States.  The  State  of  Pennsylvania  has  taken  sound  and 
solid  ground  on  this  subject.  If  I  were  to  produce  here  a  pro- 
ceeding in  a  court  martial  showing  the  -conviction  of  certain  per- 
sons, the  first  thing  you  would  say  would  be  this, — a  court  martial ! 
What!  In  time  of  Peace?  Here  in  Philadelphia?  You  would 
say  at  once  I  do  not  care  what  facts  they  had  to  support  the 
charge,  or  to  what  conclusion  they  came,  that  tribunal  had  no 
authority  to  make  such  a  decree.  If  we  were  trying  an  ejectment, 
and  a  decree  was  produced  of  a  previous  action   of  ejectment  and 


74 

verdict  in  the  District  Court  of  the  United  States,  you  would  say 
at  once,  that  court  has  no  jurisdiction  to  try  actions  of  ejectment. 
It  may  try  a  question  of  sailors'  wages,  but  it  cannot  try  a  ques- 
tion of  the  title  to  a  house  in  Philadelphia,  and  therefore,  the  sub- 
ject matter  being  beyond  its  jurisdiction,  its  decree  is  worth  no- 
thing. If  I  were  to  ask  you,  sitting  as  a  chancellor  for  a  decree  in 
regard  to  a  patent  right,  the  bill  alleging  that  I  was  the  inventor, 
and  that  somebody  was  infringing  my  right,  and  that  the  question 
of  infringement  had  been  determined  in  an  action  for  damages  in 
the  District  Court  of  Philadelphia,  you  would  tell  me  that  amounts 
to  nothing.  That  is  an  action  which  can  be  brought  and  tried  only 
in  the  Circuit  Court  of  the  United  States.  Now,  sir,  the  author- 
ity of  Ecclesiastical  Courts,  the  extent  to  which  they  can  go, 
and  the  extent  to  which  their  proceedings  can  be  re-examined 
in  the  civil  courts,  is  as  well  settled  as  any  part  of  the  law  of 
Pennsylvania.  Your  Honor  will  remember  the  case  of  the  St. 
Mary's  church,  7th  Sergeant  and  Rawle,  517,  one  of  the  earliest 
cases  on  the  subject.  It  was  a  Roman  Catholic  church  in 
this  city.  The  charter  provided  that  the  Board  of  Trustees 
should  be  composed  of  four  laymen  and  four  clergymen,  and 
that  when  any  alterations  of  the  charter  were  made  they 
should  be  made  in  the  first  instance  by  its  Board  of  Trustees.  A 
board  met,  composed  of  four  clergymen  and  three  laymen,  and  the 
alterations  of  the  charter  were  acted  upon  and  signed  at  that  meet- 
ing, and  afterwards  approved  by  the  Supreme  Court.  It  was  held 
that  inasmuch  as  the  body  which  adopted  this  amendment  was 
composed  of  three  laymen  and  not  four,  the  whole  proceeding  was 
void,  for  the  reason  that  the  ecclesiastical  body  which  originated  it 
had  not  been  organized  according  to  its  own  law,  its  written  char- 
ter. In  regard  to  the  case  of  the  Commonwealth  vs.  Green,  4th 
Wharton,  531,  the  famous  Presbyterian  case,  so  often  cited,  there  is 
not  a  word  or  syllable  of  the  opinion  of  the  court  in  that  case 
which  does  not  assume  that  the  civil  courts  will  inquire  into  the  au- 
thority of  ecclesiastical  courts  to  act  upon  any  matter  in  which 
they  profess  to  act.  In  regard  to  the  able  opinion  of  Chief  Jus- 
tice Gibson  in  that  case,  many  persons  differ  as  to  the  results 
there  reached,  and  some  persons  who  were  of  the  old  school  party 
doubted  some  of  the  positions  laid  down  there,  but  as  to  the  great 


75 

substratum  of  the  opinion,  no  lawyer  in  Pennsylvania  ever  doubted, 
namely,  that  it  was  competent  for  the  Supreme  Court  of  Pennsyl- 
vania to  review  the  proceedings  respecting  the  four  Synods  which 
were  exscinded,  and  to  inquire  what  authority  the  General  Assem- 
bly had  for  dissolving  the  plan  of  union  between  the  Congrega- 
tional and  Presbyterian  churches  formed  in  1801.  Indeed,  I  do 
not  know  that  it  has  been  seriously  urged  in  any  court  in  Penn- 
sylvania up  to  the  trial  of  the  present  case,  that  a  decree  of  an  eccle- 
siastical court  cannot  be  examined  and  inquired  into  by  a  civil 
court.  This  is  the  law  of  Pennsylvania,  and  if  it  were  not  the  law, 
the  most  monstrous  results  would  follow.  If  a  wretched,  miserable 
body  of  men  can  meet  two  or  three  thousand  miles  off,  composed  of 
two  or  three  dozens  of  persons  guided  by  the  most  intense  preju- 
dices, men  whose  minds  are  warped  and  blinded  to  such  a  degree 
that  they  can  not  see  the  truth  ;  and  if  they  can  make  a  decree 
transferring  property  worth  a  hundred  thousand  dollars  from  one 
body  to  another,  which  cannot  be  inquired  into  by  any  other 
tribunal,  where  are  we?  Where  have  we  drifted  to?  The 
next  thing  would  be  a  decree  of  an  ecclesiastical  body  transferring 
Mr.  Price's  house  to  me.  The  next  thing  would  be  a  decree  by 
such  a  Synod  transferring  some  one  of  these  churches  to  a  church 
of  some  other  denomination.  On  that  doctrine,  this  Synod  may 
meet  and  transfer  this  church  in  Broad  Street  below  Spruce,  to 
the  Episcopal  church.  They  might  send  a  commission  here  with 
authority  to  take  down  this  church  and  remove  it  altogether. 
They  might  pass  a  decree  and  confiscate  the  property  wholly.  Sir, 
not  only  are  we  at  liberty  to  examine  the  extent  of  the  authority 
under  which  the  special  tribunal  acts,  but  to  inquire  whether  the 
authoi'ity  was  properly  exercised  in  the  mode  which  it  adopted  ; 
whether  the  notice  required  by  law  has  been  given ;  in  what  form 
the  act  is  claimed  to  have  been  done;  if  by  virtue  of  its  appellate 
jurisdiction,  whether  the  first  or  primary  tribunal  has  acted,  and 
then  whether  the  appellate  tribunal  has  properly  acted  ?  Now  I 
do  not  believe  that  anything  the  Attorney  General  may  urge  in 
his  concluding  argument  will  be  able  to  shake  the  conclusions 
which  my  colleague  and  myself  have  arrived  at  in  regard  to  this 
point,  that  is,  that  there  must  have  been  jurisdiction  to  do  the 
thing ;  it  must  have  been  within  the  scope  of  the  authority  of  the 


76 

body  to  do  it ;  and  then  it  must  have  been  done  in  the  way 
provided  for  in  their  own  standards.  If  that  be  the  law,  sir,  this 
jury  will  have  very  little  trouble. 

I  say  then,  first,  under  this  head,  they  did  this  thing  in  the 
wrong  way,  if  they  had  the  right  to  do  it  at  all.  The  secession 
took  place  in  June,  1868.  This  decree  under  which  they  claim  to 
have  done  it  was  not  made  until  May,  1869 — nearly  a  year  after 
the  secession.  Now,  sir,  how  can  they  rely  upon  a  decree  which 
was  made  in  1869,  to  justify  an  act  that  was  done  in  1868  ?  They 
not  only  seceded  in  1868,  but  they  made  a  new  organization. 
They  elected  a  new  pastor.  They  gave  up  their  pews  in  our 
church.  Almost  all  of  these  corporators  who  went  oif,  paid  and 
settled  up  the  last  score.  There  was  one  gentleman  it  seems  who 
did  not.  Doctor  M'Murray,  if  my  recollection  of  the  testimony 
does  not  fail  me,  left  a  quarter's  pew  rent  unpaid  !  De  minimis  non 
curat  lex.  He  goes,  it  seems,  for  great  principles.  His  memory 
is  not  retentive  of  such  small  matters  as  debts  due  to  a  church 
by  himself.  All  these  other  gentlemen  paid  their  pew  rent,  up  to 
the  first  of  June,  1868,  and  left.  I  wonder  what  this  jury  would 
have  thought  if  the  Southern  States  had  achieved  their  independ- 
ence, gone  off,  established  themselves  as  a  separate  power,  and  had 
then  come  back  and  said  to  us,  We  want  the  Philadelphia  mint ! 
Oh !  you  want  the  Philadelphia  mint  !  Yes,  we  want  it.  On 
what  ground  ?  Well,  they  would  have  said,  it  was  built  by  taxes 
to  which  we  contributed :  we  had  an  interest  in  it ;  it  was  built  by 
our  money.  But  you  have  gone  off.  You  have  erected  your- 
selves into  a  separate  organization.  That,  sir,  was  one  of  the 
dangers  of  secession.  If  these  gentlemen  on  the  other  side  of  this 
case  were  entitled  by  law  to  all  the  rights  they  claim,  there  was  a 
very  easy  way  of  establishing  their  rights — just  remaining  with  us 
until  the  next  election,  and  then  depositing  their  votes  in  the 
ballot  boxes  once  more.  That  is  what  we  said  to  the  southern 
people.  Don't  go  off.  Don't  commit  such  folly  as  this.  Just 
wait  until  the  next  presidential  election,  and  turn  the  scale  by  your 
votes  ;  and  whatever  grievances,  real  or  imaginary,  you  may  have, 
will  soon  be  redressed.  That  did  not  suit  the  southern  people  ; 
they  would  go  off.  These  plaintiffs  seem  to  have  taken  precisely 
the  same  course,  and  they  seem  to  think  the  decree  passed  by  this 


Synod  a  year  afterwards  has  some  retroactive  effect  that  will  in 
some  way  justify  their  secession  in  1868.  That  is  now  one  of  the 
prime  difficulties  in  their  case.  This  is  not  a  new  subject  to  you, 
sir.  I  read  your  opinions  and  the  reports  of  your  opinions  on  these 
very  topics,  before  I  ever  had  the  pleasure  of  seeing  your  face. 
They  are  not  new  to  you,  and  I  ask  your  Honor  whether  you  ever 
heard  of  a  case,  I  ask  the  counsel  on  the  other  side  to  show  us 
a  case,  where  such  a  secession  as  this  has  been  committed  ;  where 
a  party  without  any  decree  in  its  favor  at  all  has  gone  off,  made  a 
separate  organization,  elected  a  new  pastor,  conducted  services  in 
a  new  place,  given  up  the  use  of  the  pews  in  the  old  church,  and 
ceased  to  be  corporators,  whether  you  or  they  ever  heard  of  a 
case  that  will  justify  them  in  coming  back  and  taking  the  property 
from  those  that  remain?  Sir,  this  charter  gives  certain  rights. 
There  was  a  large  amount  of  money  contributed  towards  the 
building  of  this  church.  The  church  building  did  not  get 
there  by  magic,  nor  without  large  contributions,  and  the  per- 
sons who  made  them  were  corporators,  holders  of  pews  in  the 
church,  persons  who  paid  pew  rent.  How  can  men  that  carry 
themselves  out  of  the  category  of  corporators,  give  up  their 
pews,  cease  to  pay  pew  rent,  cease  to  be  communicants  in  the 
church,  go  off,  and  form  another  organization,  how  can  they  on 
any  case  that  ever  has  been  decided  by  any  court  in  Christendom, 
come  back  and  claim  the  property  from  those  who  have  staid  be- 
hind and  maintained  their  rights  ?  This  thing  of  withdrawing  was 
a  perilous  act,  sir.  They  concluded  to  take  the  consequences  of 
it.  They  came  forward  and  said,  We  do  not  desire  to  hold  our 
pews  any  longer.  Here  is  the  last  payment  of  pew  rent  to  you. 
You  may  rent  our  pews  to  other  persons.  We  never  mean  to 
commune  in  this  church  again.  We  are  going  some  place  else.  We 
are  going  to  take  the  risk  of  it.  How  can  they,  after  an  absence 
of  three  years,  corne  back  and  say,  We  want  the  old  church  ?  If 
they  can  show  a  case  which  will  justify  that,  let  our  friends  do  it. 
They  undertook  at  first  to  say  that  the  Synod  had  original 
jurisdiction.  That  is  the  next  point  to  which  I  wish  to  call  your 
^attention.  Had  the  Synod  when  it  received  this  precious  remon- 
strance, authority  by  virtue  of  its  original  jurisdiction  to  make  a 
decree  which  should  have  the  effect  of  giving  to  Dr.  M 'Murray  and 


78 

Mr.  Guy  this  church  building  ?  They  were  overwhelmed 
here.  The  clear  testimony  given  by  Dr.  Wylie,  Dr.  Sterrett  and 
Dr.  M'Auley  was  conclusive  on  this  point,  and  explained  it, 
I  am  sure,  to  the  satisfaction  of  everybody  who  listened  to 
them.  The  plaintiffs,  I  say,  were  overwhelmed  here.  The  first 
note  we  had  on  this  part  of  the  case  was  from  Dr.  M'Leod.  Judge 
Brewster  put  the  question  to  him  thus  :  You  had  original  jurisdic- 
tion of  this  matter  ?  A  sort  of  supreme  court,  I  think,  your  Synod 
is  or  something  in  that  way  ?  But  their  book  was  produced.  If 
anything  is  plain  from  that  book,  it  is  that  the  Synod  has  no  ori- 
ginal jurisdiction  of  any  matter  which  is  under  the  cognizance  of 
a  lower  judicatory,  unless  you  establish  conclusively,  as  matter 
of  fact,  remissness  on  the  part  of  this  lower  judicatory.  Here  is 
the  language :  "  The  presbytery  in  case  of  ministers,  and  the 
session  in  every  other  case,  is  the  competent  authority  to  commence 
and  finish  a  process  for  scandal,  unless  a  reference  or  appeal  be 
made  to  the  superior  judicatory ;  but  the  superior  judicatory  may, 
when  occasion  requires  it,  direct  the  inferior  to  institute  a  pro- 
cess ;  they  may  commence  and  finish  a  process  themselves,  or  ap- 
point a  commission  to  do  so,  in  cases  in  which  the  inferior  judica- 
tories are  remiss  in  the  exercise  of  discipline,  or  otherwise  incapa- 
ble of  applying  a  remedy  to  an  open  scandal."  Suppose,  said 
the  counsel,  the  lower  judicatories  were  corrupt,  could  not  the 
superior  judicatory  take  it  out  of  their  hands?  Let  them  establish 
that  fact  before  they  put  such  an  illustration.  Let  them  establish 
the  fact  of  the  corruption,  and  then  the  question  would  arise.  That 
therefore  is  a  point  that  does  not  come  up  in  this  case,  because 
these  lower  judicatories,  whatever  mistakes  the  other  side  may 
allege  them  to  have  made,  are  admitted  by  all  sides  to  have  pro- 
ceeded with  the  utmost  good  faith  and  the  utmost  desire  to  come 
to  the  proper  result.  It  is  true  any  one  concerned  in  a  trial  may 
decline  the  authority  of  the  judicatory  which  undertakes  to  judge 
of  a  case  over  which  it  has  no  cognizance.  In  such  cases,  a  writ- 
ten paper  specifying  the  grounds  of  the  declinature  is  to  be  laid 
before  the  judicatory,  and  a  copy  must  be  presented  to  that  judi- 
catory to  which  the  appeal  is  first  made.  No  appeal  can  be  ad-  *< 
mitted  unless  notice  is  given  to  the  judicatory  before  which  the 
case  is  to  be  tried,  at  or  before  its  definitive  sentence,  and  unless 


79 

the  appeal  is  delivered -in  writing  within  two  weeks  from  the  time 
it  is  taken.  All  these  are  the  admitted  provisions  of  their  own 
hook. 

Now,  may  it  please  your  Honor,  what  was  before  this  session  ? 
If  we  can  successfully  establish  that  the  matter  which  the  Synod 
acted  upon  was  before  any  one  of  these  lower  judicatories,  at  the 
time  the  Synod  acted,  it  is  as  plain  as  dajlight,  that  unless  our 
opponents  can  show  these  lower  judicatories  were  remiss  in  their 
action,  then  the  Synod  had  no  jurisdiction.  I  doubt  very  much 
whether  my  friend,  Judge  Brewster,  will  have  the  courage  to 
attempt  to  throw  any  suspicion  upon  this  proposition.  I  want 
then  to  inquire  just  for  a  moment  what  was  before  the  session. 
Mr.  Stuart's  case  had  come  before  it.  I  mean  the  attack  on  Mr. 
Stuart,  with  regard  to  the  shaking  of  the  fist  at  those  who  had  at- 
tempted to  organize  the  spurious  board.  Mr.  Young  was  told 
that  the  meeting  was  a  specially  ordered  meeting  of  the  session, 
and  that  the  case  could  not  be  taken  up  then,  but  would  be  at  the 
proper  time,  and  so  far  as  that  matter  was  concerned,  there  was 
no  further  application  to  the  session  to  take  it  up.  Action  then 
was  taken  by  the  session,  and  they  were  not  remiss.  There  was 
not  time  for  remissness.  The  next  matter  that  came  before  the 
session  was  this  list  of  voters.  There,  as  my  friend,  Mr.  Patter- 
son has  shown  you,  there  was  a  special  delegation  of  authority  by 
the  congregational  meeting  to  the  session  and  board  of  trustees  to 
do  a- particular  thing,  a  particular  piece  of  work,  to  count  a  cer- 
tain number  of  votes,  and  to  ascertain  the  character  of  the  voters. 
The  session  had  nothing  whatever  to  do  with  it,  as  a  session,  as  a 
church  court.  Nothing  at  all.  The  congregational  meeting  might 
just  as  well  have  referred  the  question  of  the  illegality  of  these 
voters  to  the  directors  of  the  Philadelphia  Bank,  and  the 
Synod  would  have  had  just  as  much  authority  to  pass  a  decree 
removing  the  directors  of  the  Philadelphia  Bank  from  office,  as  to 
make  a  decree  with  regard  to  the  session  or  the  presbytery  for 
what  they  did  under  that  delegation  of  power.  It  was  a  special 
delegation  of  authority  on  a  special  subject,  outside  of  their  juris- 
diction as  a  court  altogether,  and  therefore  there  could  be  no  ap- 
peal. Sir,  these  parties  all  agreed  on  both  sides,  and  were  per- 
fectly willing  in  the  last  few  days,  to  refer  the  whole  of  this  contro- 


80 

versy  to  you  as  a  special  umpire.  You  couW  not  have  acted.  We 
told  them  a  judge,of  the  Supreme  Court  would  not  so  act.  Suppose 
you  had  accepted  the  office,  made  a  decree,  signed  it,  and  trans- 
mitted copies  to  the  parties ;  could  anyhody  have  taken  an  appeal 
to  the  Supreme  Court  in  Banc,  from  the  result  so  arrived  at  by  you 
as  a  referee?  On  the  same  principle,  what  the  session  did  in 
regard  to  these  voters  never  could  have  been  appealed  from,  either 
to  presbytery,  or  to  Synod,  or  to  any  other  power.  That  leaves 
but  one  other  thing — the  suspension  of  Dr.  McMurray  and  Mr. 
Guy.  In  regard  to  that,  the  session  took  action,  the  session  made 
an  appropriate  entry  upon  its  minutes,  and  these  minutes  have  been 
before  the  court.  The  result  was  these  elders  were  suspended 
from  their  offices  as  elders.  They  could  have  taken  an  appeal  to 
the  presbytery  when  the  session  had  finally  acted,  and  when  the 
presbytery  had  acted  they  could  have  taken  an  appeal  to  the 
Synod.  You  see  how  they  missed  it.  It  sometimes  happens 
that  persons  engaged  in  long  machinations,  extending  over  a  con- 
siderable space  of  time,  involving  many  details,  miss  it  just  in  the 
most  important  point  of  all.  Some  weak  stone  in  the  foundation, 
some  weak  part  of  the  structure,  not  noticed  when  it  is  going  up, 
gives  way,  and  the  whole  tumbles  down. 

By  the  Court.  Could  they  have  taken  an  appeal  from  that  mere- 
ly precautionary  suspension  without  declining  the  jurisdiction? 

Mr.  Porter.  No,  I  think  not;  not  without  declining  the  juris- 
diction. I  meant  to  say  they  could  have  proceeded  with  regard  to 
that,  or  they  might  have  declined  the  jurisdiction. 

Court.  If  they  had  not  declined  the  jurisdiction,  could  they 
have  appealed  from  the  precautionary  suspension  ? 

Mr.  Porter.  I  think  not;  that  would  be  contrary  to  the  princi- 
ple on  which  all  courts  act ;  from  the  inferior  courts  they  could  go 
by  appeal,  only  after  final  action.  That  strengthens  our  position 
very  much.  They  might  have  brought  the  thing  to  a  final  deter- 
mination before  the  session  and  then  have  taken  their  appeal  to  the 
Synod.  Dr.  McMurray  had  counsellors,  I  doubt  not.  Those  who 
were  concerned  in  getting  up  this  remonstrance,  and  helping  him 
to  write  it,  making  themselves  busy-bodies  in  other  men's  matters, 
I  have  no  doubt  were  willing  and  ready  to  make  suggestions  to 
him,  and  to  give  him  advice  as  to  the  right  course  to  be  taken. 


81 

Under  suck  influence,  doubtless,  he  wrote  a  paper  to  Dr.  Wylie,  and 
addressed  it  to  him  personally,  in  which  he  spoke  of  the  pretended 
authority  of  this  session  and  of  the  proceedings  suspending  him. 
Not  being  addressed  to, the  moderator  in  his  official  capacity,  Dr. 
Wylie  returned  it  in  the  same  envelope  in  which  it  came.  The  enve- 
lope was  produced  here  and  we  called  for  the  paper  itself,  because 
we  had  a  little  curiosity  to  see  it.  It  was  returned  to  him,  I  say, 
and  a  copy  taken  of  Dr.  Wylie's  note,  in  which  the  latter  told 
him,  this  is  not  properly  addressed.  You  cannot  address  a  pa- 
per like  this  to  me  individually ;  you  must  address  it  to  me  as  mod- 
erator. You  cannot  talk  of  the  pretended  authority  of  the  session 
in  a  private  note  addressed  to  me  as  a  private  man.  Make  your 
declinature  in  a  proper  way,  and  then  it  will  be  received.  Such  a 
declinature  amounted  to  nothing.  There  was  never  a  declinature 
at  all.  He  refused  to  make  it.  Is  not  the  difference  palpable? 
Suppose  I  address  a  note  to  you,  sir,  at  your  hotel,  or  place  of 
residence, — a  private  note,  complaining  of  something  you  have 
done  sitting  here  as  a  judge,  what  would  your  Honor  do  with  it? 
You  would  put  it  in  the  fire,  tear  it  to  pieces,  throw  it  away.  If 
I  have  done  anything  you  would  say,  in  my  official  capacity,  to 
which  he  can  take  exception,  let  him  come  into  court  and  take  a 
proper  appeal,  or  make  a  proper  motion,  but  do  not  let  him  be 
writing  private  notes  to  me  in  my  individual  capacity.  You  would 
not  even  file  such  a  note  on  the  records  of  the  Court.  What  could 
Dr.  Wylie  have  done  with  such  a  paper?  He  returned  it  to  the 
writer.  There  was  a  courtesy  in  that  which  probably  a  civil  court 
would  hardly  have  practised.  I  say,  therefore,  there  was  no  declina- 
ture. A  copy  was  not  served  as  the  book  requires.  No  paper  was  ad- 
dressed to  the  moderator.  No  paper  was  addressed  to  the  Court,  and 
therefore  it  is  reduced  to  certainty  that  that  case  remained  before 
the  lower  judicatory.  It  was  in  an  unfinished  state  before  the 
lower  judicatory.  Dr.  McMurray  then  goes  into  presbytery,  and 
undertakes  to  present  a  paper  to  presbytery  which  he  calls  a  de- 
clinature; and  the  moderator  taking  the  paper  in  his  hand  and 
looking  at  it,  says  to  the  moderator  of  the  session,  who  was  a  mem- 
ber, also  of  that  court,  Sir,  has  the  session  received  any  notice 
of  this  ?  No,  sir  !  The  session  has  received  no  notice.  Then  Dr. 
McMurray  we  cannot  receive  this  paper.  The  book  requires, 
6 


82 

when  you  present  a  paper  like  this,  that  you  should  have  given 
notice  of  it  to  the  session.  The  reason  for  not  doing  it  was  simply 
to  heap  insult  on  the  session.  It  was  to  give  insult  to  Dr.  Wylie. 
When  a  member  of  the  presbytery  said  rjo  notice  had  been  given 
whatever  to  the  lower  court,  the  presbytery  refused  to  touch  it. 
Now,  sir,  if  anything  has  been  demonstrated  by  the  testimony  here, 
it  is  that  you  cannot  skip  over  one  of  thcsejudicatories  any  more  than 
you  can  come  directly  from  a  Justice  of  the  Peace  to  the  Supreme 
Court  of  Pennsylvania.  You  must  have  your  case  tried  in  the 
one  Court,  and  go  by  appeal  to  another.  You  cannot  pass  one 
of  these  courts.  Then,  sir,  Dr.  McMurray  did  not  take  his  appeal 
or  his  declinature  in  the  proper  way.  The  consequence  of  that 
was,  he  left  it  in  the  hands  of  the  lower  judicatory.  What  else  did 
the  presbytery  do  ?  The  presbytery  behaved  very  kindly ;  they 
took  more  notice  of  his  case,  did  more  for  him  than  any  man  who 
comes  into  court  with  insult  on  his  lips,  ever  deserves.  I  am  sure, 
sir,  if  I  were  to  address  you  as  a  member  of  this  court,  as  Dr. 
Wylie  was  addressed  by  Dr.  McMurray,  I  am  sure  the  next  time 
I  arose  in  the  court,  you  would  say,  not  a  word  from  you,  sir,  with- 
out an  apology, — not  another  word  until  you  put  yourself  right  be- 
fore the  court.  You  cannot  insult  this  court,  one  moment,  and  then 
get  up  and  address  it  in  another  moment.  But  this  presbytery 
passing  by  the  indignity,  appoints  a  commission  to  consider  these 
very  difficulties  on  the  part  of  this  church,  and  they  appoint  it  the 
very  same  day  in  which  this  affront  was  offered.  Was  there 
remissness  here?  That  commission — I  only  wonder  that  these 
gentlemen  have  not  the  names  of  their  committees  changed  and 
called  something  else.  I  only  wonder  that  the  acts  practised  upon 
their  ancestors  by  some  of  these  high  commissions  have  not  deterred 
them  from  using  the  very  name  of  commission.  It  always  sug- 
gests to  me  the  high  commission  under  Jeffries,  though  I  am  bound 
to  say  no  commission,  not  even  that  of  Jeffries  ever  claimed  the 
powers  that  are  claimed  for  this  Synod.  The  presbytery  ap- 
pointed a  commission  on  the  same  day,  a  commission  to  take 
into  consideration  the  very  subjects  which  the  Synod  afterwards 
considered, — and  it  sat  up  to  within  two  days  of  the  meeting  of 
Synod.  The  commission  took  the  subject  into  consideration  again 
after  the  adjournment  of  the  Synod,  and  continued  to  consider 


83 

it  with  as  little  delay  as  any  court  was  ever  guilty  of  whose  trans- 
actions I  have  ever  been  called  upon  to  investigate;  and  they 
would  have  continued  to  do  perfect  and  entire  justice  (Dr. 
McMurray  and  his  friends  having  a  representative  upon  the 
commission)  until  they  found  that  by  the  act  of  secession,  the 
parties  had  gone  off  from  the  church,  and  that  no  decree  which  the 
commission  could  make  would  have  the  least  effect.  There  is  an- 
other of  the  evils  of  secession.  Now,  sir,  one  would  naturally  in- 
quire, why  the  Synod  did  not  pause  at  this  point,  instead  of 
trampling  upon  everything  that  is  held  sacred  in  the  forms  of  this 
church?  Why  did  they  not  at  least  inquire  whether  they  were  go- 
ing according  to  their  own  forms?"  They  were  told  the  moment 
the  subject  was  taken  up  in  the  Synod  everything  in  respect  to  the 
absence  of  notice  that  any  tribunal  could  ask  in  such  a  matter. 
They  were  told  the  exact  and  particular  facts,  as  I  have  given 
them  to  you,  in  regard  to  the  action  of  the  Session  and  Presbytery. 
Nay,  more,  there  was  a  report  of  the  presbytery  read  to  that  very 
Synod  containing  a  particular  statement  of  what  had  been  done 
with  regard  to  these  very  matters,  and  containing  notice  of  the 
fact  that  the  commission  was  then  sitting  with  perfect  power  to 
make  a  proper  and  just  decree.  But,  no,  I  might  as  well  go  out 
to  the  track  of  the  Pennsylvania  Railroad  when  one  of  those 
large  trains  of  cars  is  coming  in  at  the  rate  of  twenty  or 
thirty  miles  an  hour,  and  attempt  to  stop  it  with  a  rye  straw. 
No,  sir,  they  were  not  to  be  stopped.  They  had  personal  notice. 
They  had  notice  from  the  Presbytery.  They  had  their  own  book 
before  them,  but  nothing  could  stop  them,  and  the  extraordinary 
scene  is  presented  of  a  body  like  this,  proceeding  directly  in  the 
face  of  every  requirement  of  its  book.  What  is  more  striking  to 
the  mind  of  a  lawyer,  than  the  injustice  likely  to  be  produced  when 
a  lower  Court  is  acting  on  a  case  during  the  very  time  an  appeal 
to  a  higher  Court  is  proceeding  there  also?  The  Common  Pleas 
has  jurisdiction  in  Quo  Warranto;  the  Nisi  Prius  has  no  jurisdic- 
tion in  Quo  Warranto  as  determined  in  many  cases,  and  lastly  in 
the  case  of  the  Credit  Mobilier  Company, — no  jurisdiction  except 
to  try  an  issue  of  fact  before  a  jury.  Suppose  a  proceeding  in 
Quo  Warranto  in  the  Supreme  Court,  and  one  in  the  Court  of 
Common  Pleas,  and  an   appeal  taken   in  the  latter   case   to  the 


84 

Supreme  Court  in  Banc,  before  the  Common  Pleas  had  finished  its 
work,  the  Common  Pleas  making  one  decree,  and  the  Supreme 
Court  making  another  in  the  very  same  matter.  There  can  be 
nothing  in  the  way  of  injustice  to  suitors  greater  than  the  violation 
of  these  forms.  This  was  the  singular  position  in  which  the  business 
got  in  the  Synod, — got  by  the  wrong-headedness  of  Dr.  McMurray 
in  refusing  to  submit  to  any  form  of  authority  whatever,  to  do  any- 
thing less  than  just  what  he  pleased  to  do,  and  that  is  the  way 
such  men  are  generally  caught, — when  mere  prejudice  takes  pos- 
session of  the  mind,  and  the  reason  is  utterly  beclouded.  There 
is  where  he  caught  himself.  He  got  his  head  into  the  very  noose 
he  had  prepared  for  others. 

Let  me  now  call  your  attention  to  another  point  for  a  moment. 
It  is  a  point  that  seems  to  me  so  important,  that  the  cause  ought 
to  depend  upon  it  to  a  large  extent.  The  obligation  under  which 
this  church  came  by  its  charter,  was  to  "adhere  to  and  maintain  the 
system  of  religious  principles  declared  and  exhibited  by  the  Re- 
formed Presbyterian  Synod  of  North  America."  That  charter  was 
granted  by  the  State  of  Pennsylvania.  It  gave  important  rights 
of  property.  The  money  invested  in  this  building  was  invested  on 
this  one  condition  only, — that  the  congregation  worshipping  there 
should  adhere  to  and  maintain  the  system  of  religious  principles 
declared  and  exhibited  by  the  Reformed  Synod,  etc.  It  is  not 
pretended  that  there  has  been  the  slightest  departure  from  the 
doctrines  of  that  Synod. 

The  Court.  The  point  the  relators  make  is  this,  that  it  is  one  of 
the  principles  maintained  that  members  of  the  church  shall  be  in 
subordination  to  the  Synod. 

Mr.  Porter.  I  am  coming  to  that  in  a  moment.  I  will  only  say 
here  that,  in  my  view,  that  is  a  part  of  the  case  easily  disposed  of. 
Before  going  to  that  question  of  subordination,  I  call  your  atten- 
tion to  the  terms  of  the  charter.  "  Who  adhere  to  and  maintain, 
etc.,"  maintain  the  system  of  religious  principles,  that  is,  the 
principles  of  religion  as  distinguished  from  the  forms  of  religion  ; 
such  as  the  doctrine  of  the  trinity,  the  doctrine  of  the  atonement 
and  other  doctrines  that  are  considered  in  these  books  the  vital 
principles  of  religion.  The  members  of  this  church  are  to  adhere 
to  and  maintain  these  religious  principles  as  declared  and  exhibited 


85 

by  the  Reformed  Synod  of  North  America.  Now,  sir,  so  far  as 
my  knowledge  goes,  there  never  has  been  an  instance  in  which  any 
court  has  given  effect  to  the  decree  of  an  ecclesiastical  tribunal, 
unless  there  was  some  question  of  religious  faith  or  doctrine  in  dis- 
pute. I  will  take  the  opportunity  of  running  over  some  of  the  cases, 
and  you  will  find  that  in  every  case  in  which  any  civil  court  has 
given  any  effect  to  the  decision  of  an  ecclesiastical  court  in  a  ques- 
tion of  property,  it  has  been  where  an  ecclesiastical  court  has  de- 
cided between  one  of  two  bodies,  that  this  body  or  that  body  held 
the  true  doctrines  of  the  church.  Why  should  they  not  give  effect 
to  such  a  decree  as  that  ?  How  are  you  to  determine  which  party 
is  right  in  a  contest  between  two  parties  as  to  the  doctrines  of  the 
church  ?  How  can  you  determine  what  are  the  true  doctrines  of 
the  church,  and  which  party  holds  the  true  doctrines  ?  Therefore, 
where  such  a  dispute  has  taken  place,  and  the  ecclesiastical  court 
of  last  resort  has  said  this  party  or  that  party  holds  the  true 
doctrines  of  the  church,  such  a  decision  is  on  every  reason  and 
principle  entitled  to  the  greatest  respect.  These  are  the  only 
cases  in  which  a  civil  court  has  ever  allowed  any  question  of  pro- 
perty to  turn  upon  a  decree  of  an  ecclesiastical  court,  namely, 
where  an  ecclesiastical  court  has  pronounced  a  decree  in  regard  to 
a  difference  of  doctrine.  In  the  case  of  Craigdallie  vs.  Aikman,  1 
Dow,  P.  C.  1,  it  was  a  question  as  to  the  voluntary  support  or 
compulsory  support  of  the  pastor.  In  the  case  of  the  Attorney 
General  vs.  Pierson,  3  Merivale,  353,  it  was  a  question  between 
Unitarians  and  Trinitarians.  In  Lady  Hewlitt's  charities,  7  Simon, 
309,  very  much  the  same  kind  of  question  arose.  In  Attorney 
General  vs.  Gould,  28  Beaven,  485,  the  question  was  between 
close  communion  Baptists  and  open  communion  Baptists.  In  Dill 
vs.  Watson,  2  Jones,  Irish  Exchequer  Reports,  48,  the  question 
was  whether  one  of  the  parties  continued  to  hold  the  doctrine  of 
the  trinity,  or  whether  they  were  not  Arians — Arius  having  held 
peculiar  views  with  regard  to  the  character  of  the  Saviour,  and 
with  regard  also  to  the  Holy  Spirit,  contending  in  some  part  of 
his  writings  that  the  Holy  Spirit  did  not  proceed  from  God,  but  that 
it  was  an  emanation  from  the  Saviour.  In  the  case  of  Miller  vs.  Gable, 
2  Denio,  492,  the  contest  was  between  Arminians  and  Calvinists. 
The  case  of  Field  vs.  Field,  9  Wendell,  394,  was  the  controversy 


86 

between  the  Ilicksite  and  Orthodox  Quakers.  In  Skilton  vs.  Web- 
ster, Brightly 's  N.  P.  203,  the  very  corner-stone  on  which  our 
friends  on  the  other  side  seem  to  build  their  hopes,  if  they  have 
any  hopes  at  all,  the  question  was  whether  the  Webster  party  held 
doctrines  that  did  or  did  not  conform  to  the  resolutions  that  had 
been  adopted  at  Piqua,  which  were  alleged  by  the  other  party  to 
be  the  true  and  only  doctrines  of  the  church.  There,  Mr.  Webster 
was  found  to  have  violated  these  doctrines,  and  consequently  the 
action  of  the  ecclesiastical  court  was  deemed  entitled  to  the  highest 
consideration  and  respect.  In  the  Commonwealth  vs.  Green,  4 
Wharton,  531,  the  question  was  between  the  Old  School  and  New 
School  Presbyterians.  In  Sutter  vs.  the  Reformed  Dutch  Church, 
6  Wright,  503 — one  of  our  most  marked  cases — Mr.  Smiley,  whose 
conduct  produced  the  difficulty,  was  found  by  an  express  decree 
of  the  Chassis  to  be  a  Unitarian.  That  did  not  suit  the  Dutch  Re- 
formed Church,  and  a  contest  arose  over  it.  The  decree  of  the 
Classis  which  had  acted,  if  not  conclusive  on  such  a  point,  certainly 
every  one  must  admit  entitled  to  great  respect.  In  the  case  of 
Watson  vs.  Farris,  45  Missouri,  183,  which  my  friend,  Mr.  Price, 
commented  upon  with  so  much  triumph,  the  act  and  testimony 
men  were  held  to  have  been  wrong.  The  action  of  the  General 
Assembly  substantially  was  that  in  their  protest  the  doctrines  of 
the  church  had  been  violated.  I  do  not  say  that  the  General 
Assembly  arrived  at  the  conclusion  by  the  proper  means,  but  you 
will  find  the  General  Assembly  convicted  the  declaration  and  testi- 
mony men  as  holding  doctrines  which  the  General  Assembly  had 
pronounced  not  to  be  doctrines  of  the  Presbyterian  Church.  Find- 
ing that  the  General  Assembly  had  pronounced  a  decree  on  that 
subject,  the  Supreme  Court  of  Missouri  adopted  it  as  correct ;  and 
if  that  case  is  good  for  anything  at  all,  it  is  good  for  that,  and  it 
is  good  for  nothing  more.  Now,  sir,  having  thus  commented  on 
every  case  of  any  importance  here  or  elsewhere,  I  throw  down  the 
challenge  once  more  to  my  friend,  the  Attorney  General,  to  pro- 
duce a  case  in  which  a  civil  court  has  ever  given  a  decision, 
adopting  the  law  of  an  ecclesiastical  court,  except  when  some  sub- 
ject of  doctrine  was  in  dispute  between  the  parties.  The  idea 
never  seems  to  have  occurred  to  any  one  before  the  trial  of  this 
case,  that  where  there  is  no  dispute  about  doctrine — no  controversy 


87 

between  the  parties,  either  as  to  faith  or  practice,  or  anything 
relating  to  religion,  that  the  Synod  could  by  its  decree  transfer 
property  from  one  body  to  another.  If  they  can  do  this,  they  can 
transfer  Mr.  Barnes'  church  to  Dr.  Boarduian's  congregation,  or 
transfer  Dr.  Boardman's  church  to  John  Doe  or  Richard  Roe. 

Now,  sir,  as  to  this  matter  of  subordination,  to  which  your 
Honor  has  called  my  attention,  what  is  to  be  the  limit  of  that 
doctrine  ?  This  is  one  of  the  terms  of  ecclesiastical  communion  to 
which  every  member  of  this  church  subscribes  on  being  admitted 
to  membership,  viz. : 

"  A  practical  adorning  of  the  doctrine  of  God  our  Saviour,  by  a 
life  and  conversation  becoming  the  Gospel,  together  with  due  sub- 
ordination in  the  Lord,  to  the  authority  of  the  Synod  of  the  Re- 
formed Presbyterian  Church  in  North  America." 

I  want  to  know  first  what  these  words  mean.  What  does  due 
subordination  in  the  Lord  to  the  authority  of  the  Synod  mean  ? 
It  is  due  subordination  in  the  Lord  ;  in  respect  to  the  Lord  ;  in 
respect  to  religious  doctrine, — matters  of  faith.  Can  it  mean  any 
thing  more  than  that  ?  If  it  does  not  mean  due  subordination  in 
regard  to  religious  principles,  does  it  mean  that  the  members  of 
the  church  who  accept  these  terms  of  communion  must  be  in  due 
subordination  to  the  authority  of  the  Synod,  in  regard  to  secu- 
lar matters;  in  regard  to  how  many  dry  goods  or  how  many 
pounds  of  mackerel  a  man  shall  sell,  or  what  amount  of  property 
he  shall  buy,  or  how  many  horses  he  shall  drive  ?  Does  it  mean 
subordination  to  the  Synod  as  to  what  sort  of  a  hat  he  shall  wear, 
whether  it  shall  be  as  broad  in  the  brim  as  the  hats  worn  by  some 
of  the  ancestors  of  my  friend,  Mr.  Price,  or  as  narrow  as  those  of 
some  of  the  young  gentlemen  disporting  themselves  to-day  on 
Chestnut  Street  ?  Does  it  mean  that  a  man  who  assumes  this  re- 
lation to  the  church  shall  be  subordinate  to  the  Synod  in  regard  to 
the  practice  of  his  profession  ?  Suppose  the  Synod  should  resolve, 
that  hereafter  all  practitioners  of  medicine  whenever  called  to 
prescribe  for  old  ladies  should  give  only  camomile  tea.  Sup- 
pose Dr.  McMurray  were  called  to  see  an  old  lady  with  rheu- 
matism. He  says,  madam,  I  know  exactly  what  you  want.  You 
want  red  flannel,  but  you  know  I  must  be  in  subordination  to  the 
Synod  of  my  church.     Here  I  find  the   Synod  has    acted  in  this 


matter ;  I  must  be  subordinate  to  them.  I  really  can  prescribe 
nothing  for  you  but  goose  grease.  What  odor  would  some  of  these 
good  divines  be  m  if  they  were  to  be  in  subordination  in  regard 
to  these  matters  ?  That  was  not  what  was  meant,  sir,  by  the  pro- 
vision of  their  book.  I  endeavored  to  spear  Dr.  McLeod  with  a 
question  on  this  very  point.  You  say,  Doctor,  the  members  of  this 
church  are  to  be  in  subordination  to  the  Synod.  What  do  you  mean 
by  that  ?  Now,  Dr.  McLeod  is  one  of  the  sharpest  men  in  that  Synod. 
He  took  that  stand  to  get  testimony  before  this  court,  which  the 
court  had  expressly  ruled  out,  and  I  was  as  determined  he  should 
not  get  such  testimony  in.  Dr.  McLeod  was  brought  here  for  the 
purpose  of  carrying  this  case  through  for  the  relators ;  I  was  just  as 
determined  that  it  should  be  tried  according  to  law,  and  I  speared  Dr. 
McLeod  with  the  question.  Doctor,  you  talk  about  subordination. 
Tell  me  what  you  mean  by  subordination  to  the  Synod  ?  and  with 
a  degree  of  learning  and  astuteness,  which  you  might  have  expected, 
he  said,  I  mean,  "  Due  subordination  to  the  Synod."  I  said,  I 
have  got  that  already,  what  do  you  mean  by  it  ?  Well,  he  meant 
due  subordination  in  the  Lord.  I  have  got  that  too.  I  want  you 
to  tell  me  whether  this  due  subordination  that  you  talk  of  does  or 
does  not  apply  to  men's  secular  affairs  ;  what  does  it  apply  to  ? 
"  It  applies,  sir,"  he  said  with  a  great  deal  of  emphasis,  "  It  applies 
to  those  matters  which  are  contained  in  our  standards."  Agreed, 
Doctor  !  we  have  brought  you  down  at  last.  We  have  brought  you 
to  a  point  in  which  we  can  test  your  meaning.  A  member  of  the 
church  must  be  in  due  subordination  to  the  authority  of  the  Synod 
with  regard  to  matters  contained  in  the  standards  of  the  church. 
What  is  contained  in  the  standards  ?  I  read  here  of  election,  the 
Holy  Spirit,  regeneration,  faith,  justification,  sanctification,  the 
state  of  man  after  death,  perseverance  of  the  saints.  These  are  the 
matters  contained  in  the  standards,  and  these  are  the  matters  in 
which  members  of  this  church  are  to  be  in  subordination  to  the 
authority  of  the  Synod.  Now  show  me  what  the  Synod  has  done 
with  regard  to  any  one  of  these  matters.  Then,  sir,  if  the  Synod 
has  taken  no  action  in  regard  to  these  matters,  I  want  to  know  in 
what  this  church  was  insubordinate?  In  what  have  any  of  its 
members,  Mr.  Stuart  or  anybody  else,  been  insubordinate?  These 
ecclesiastical   courts    have    regular  powers    committed   to    them, 


89 

which  they  are  to  exercise  with  regard  to  the  churches.  Let  any- 
body show  me  that  it  is  one  of  the  powers  of  this  court  to  take  a 
piece  of  real  estate  and  transfer  it  to  certain  men  by  name.  That 
is  what  I  want  to  see. 

By  the  Court.  Due  subordination  in  the  Lord  to  the  authority  of 
the  Synod,  means  subordination  to  all  its  constitutional  and  legi- 
timate acts. 

Mr.  Porter.   Within  the  sphere  of  its  authority. 

The  Court.  Yes,  all  its  constitutional  and  legitimate  acts,  all 
the  acts  that  are  authorized  by  the  laws  and  usages  of  the  Church. 

Mr.  Porter.  Yes,  Sir,  and  in  reference  to  that  let  these  Plain- 
tiffs show  that  these  parties  whom  we  represent  have  violated 
anything  the  Synod  has  done  within  the  scope  of  its  consti- 
tutional authority  and  power  as  an  appellate  court  of  the 
Church.  Then  they  will  be  able  to  show  something  more  worthy 
of  consideration  than  anything  they  have  yet  presented.  They 
are  to  be  subordinate  to  the  Synod  just  so  far  as  the  Synod  acts 
within  the  limits  which  the  book  prescribes,  or  within  the  limits 
of  any  other  jurisdiction  which  they  may  have  from  any  other 
source;  but  whenever  the  Synod  gets  out  of  the  limits  of  its  juris- 
diction, the  act  is  utterly  void,  it  binds  nobody.  Whenever  they 
act  on  a  subject  within  the  limits  of  their  jurisdiction  but  act  in 
the  wrong  way,  violative  of  the  forms  contained  in  their  book, 
then  again  I  say,  the  act  is  void  and  nobody  is  obliged  to  submit 
to  it,  or  in  more  technical  phrase  to  be  subordinate  to  it  at 'all. 

Let  us  look  then  at  this  Remonstrance  and  see  what  the  Synod 
actually  did,  and  how  far  its  action  was  within  the  limits  of  its 
jurisdiction.  As  to  that  part  of  the  allegations  in  this  paper 
which  relate  to  the  action  of  the  Session  respecting  the  illegal  vo- 
ters, I  need  not  say  anything  in  this  connection  about  that,  for 
what  has  the  Synod  or  Presbytery  to  do  with  that  ?  The  next 
clause  relates  to  the  conduct  of  Dr.  Wylie  in  participating  in  the 
communion  with  other  Churches  on  which,  however,  the  commis- 
sion took  no  testimony,  and  did  not  act.  They  seem  indeed  to  have 
abandoned  it.  I  asked  Dr.  Wylie  about  these  acts,  and  he  fully 
justified  himself  in  what  he  had  done,  and  no  doubt,  these  same 
reasons  may  have  occurred  to  the  gentlemen  composing  the  Syn- 
odical  commission.     That  leaves  us  as  the  only  matter  for   con- 


90 

sideration,  the  proceedings  of  the  session  of  this  Church  in  regard 
to  these  suspended  elders.  I  have  endeavored  to  show  your 
Honor  that  the  proceedings  of  these  elders  got  no  further  than 
the  session  ;  that  it  did  not  even  get  to  the  Presbytery ;  conse- 
quently  this  remonstrance  was  the  only  paper  that  the  Synod  had 
before  it  in  regard  to  the  action  respecting  the  elders.  Can  this 
Jury  tell  me,  or  the  Attorney  General  tell  me  in  his  reply,  how 
the  Synod,  from  any  paper  before  it,  found  out  the  names  of  these 
two  elders  ?  Having  received  this  paper — a  paper  in  which  the 
names  of  the  elders  were  net  mentioned  at  all,  they  make  a  de- 
cree about  them  and  certain  persons  who  adhere  to  them,  and 
whom  the  Synod  says  shall  have  this  church.  How  did  the  Synod 
get  these  names  ?  Now,  Sir,  I  have  said  already  that  whenever 
it  can  be  demonstrated  that  the  Synod  acted  outside  of  the  limits 
of  its  jurisdiction  or  had  no  jurisdiction  over  the  subject  matter 
at  all,  or  acted  within  the  limits  of  its  jurisdiction,  but  in  an  irre- 
gular or  improper  manner,  nobody  can  be  said  to  have  done 
an  act  of  insubordination  to  the  Synod,  who  will  not  comply  with 
that  action,  who  will  not  take  notice  of  that  action,  who  acts  in 
opposition  to  it.  Here,  as  I  think,  it  has  been  demonstrated,  that 
when  the  Synod  passed  this  judgment,  saying  that  Dr.  McMurray 
and  Mr.  Guy  should  have  this  church,  they  acted  without  their 
jurisdiction,  and  consequently  their  act  is  of  no  effect. 

Now  I  want  to  call  your  Honor's  attention  to  what,  to  my  mind, 
is  the  most  important  part  of  this  case.  Look  at  what  the  Synod 
actually  did.  You  see  how  they  missed  it  again.  Here  is  the 
Resolution  : 

"That  Dr.  A.  S.  McMurray  and  Robert  Guy,  ruling  elders, 
with  the  officers  and  members  whose  names  appear  on  the  various 
papers  submitted  to  Synod  at  its  late  meeting,  and  by  Synod  re- 
ferred to  this  Commission,  together  with  such  others  as  may  ad- 
here to  them,  be  and  they  hereby  are  declared  to  be  the  First 
Reformed  Presbyterian  Congregation  of  Philadelphia,  and  as  such 
entitled  to  all  the  rights  and  immunities  appertaining  thereto,  and 
by  this  Commission,  in  the  exercise  of  the  power  entrusted  to  it  by 
Synod,  are  hereby  placed  under  the  care  of  the  Second  Reformed 
Presbytery  of  Philadelphia." 

No  matter  whether   they  were  pew-holders  or  not.     No  matter 


91 

whether  they  belong  to  this  church  or  any  other  church.  Certain 
persons  whose  names  appear  on  certain  papers  with  regard  to 
which  not  a  particle  of  testimony  had  been  taken  in  the  case  are 
declared  to  be  the  First  Reformed  Presbyterian  Congregation  of 
Philadelphia,  and  as  such  entitled  to  all  the  rights  and  immunities 
pertaining  thereto.  Observe,  sir,  most  carefully,  that  the  Resolu- 
tion relates  to  the  congregation  only.  Do  you  suppose  they  in- 
tended to  refer  to  the  corporate  title  of  the  body  in  this  phrase- 
ology? Not  at  all,  sir.  In  point  of  fact,  that  is  not  the  title. 
They  do  not  pretend  to  refer  to  the  corporate  title.  They  say  Dr. 
McMurray  and  Robert  Guy  and  certain  others  shall  be  the  con- 
gregation. They  do  not  say  the  Session.  It  is  the  session  that  is 
to  recognize  these  trustees  under  this  charter,  not  the  conore- 
gation.  The  resolution  does  not  say  church, — it  does  not  say 
elders  as  such. 

The  Court.  It  describes  the  two  as  ruling  elders  whose  names  ap- 
pear, etc. 

Mr.  Porter.  Yes,  sir,  it  describes  them  by  title  as  ruling  elders, 
but  the  resolution  does  not  profess  to  relate  to  the  Session  as  a 
Session.  It  does  not  touch  the  vital  point  of  this  charter.  They 
have  missed  it,  sir,  and  missed  it  in  such  a  way  that  you  can,  as  a 
Judge,  lay  your  judicial  hand  upon  it.  It  is  written  matter,  and 
not  matter  proved  by  witnesses.  The  consideration  of  such  papers 
is  for  the  Court,  and  not  for  the  Jury.  What  is  the  effect  of  that 
Resolution?  Passing  by  the  point  that  it  never  was  properly  be- 
fore them,  that  they  never  got  it  in  the  right  way,  that  they  had 
no  jurisdiction  at  all  on  the  subject,  and  conceding  for  the  sake 
of  argument,  that  they  had  some  right  to  act  about  it  in  some  way, 
what  did  they  do,  sir?  This  charter  provides  very  clearly  and 
emphatically  that  there  shall  be  a  board  of  trustees  which  shall 
consist  of  seven  members  who  shall  be  recognized  by  the  Session 
of  this  congregation  as  being  in  full  communion  with  this  church. 
What  is  the  session  ?  There  cannot  be  two  sessions  of  one  church  ; 
there  is  but  one  session  of  one  church,  just  as  there  are  not  two 
Supreme  Courts  of  Pennsylvania,  or  two  Courts  of  Nisi  Prius. 
There  is  one  Church  court  pertaining  and  belonging  to  one  church, 
called  the  Session.     Who  compose  the  Session  ?     The  book  shows 


92 

that  the  minister  and  the  elders  constitute  the  Session,  and  here 
in  this  Resolution  the  Session  is  not  in  any  way  referred  to. 

By  the  Court.  There  is  one  matter  which  occurs  to  me,  that  is, 
whether  a  portion  of  the  congregation,  under  the  laws  and  usages 
of  this  church,  can  be  set  apart  and  declared  to  be  the  congrega- 
tion without  touching  the  Pastor  of  the  church, — whether  the  Pas- 
tor can  be  removed  in  that  way  by  taking  out  a  portion  of  the 
members  of  his  church  and  calling  it  the  church. 

Mr.  Porter.  That  might  be  well  illustrated  by  supposing  that 
the  Synod  take  every  name  of  every  member  of  the  church,  and 
just  declare  that  the  church  should  belong  to  such  and  such  per- 
sons. This  deprives  the  Pastor  of  his  office  at  once,  sir.  They 
were  not  quite  so  graceless  here  as  to  do  that,  or  attempt  to  do 
that.  They  tried,  however,  to  accomplish  the  same  thing  in  an- 
other way.  They  drew  at  the  mark  fairly.  Several  of  these 
gentlemen  who  have  been  here,  during  the  trial,  were  very  skilful 
in  pointing  out  the  mark,  but  the  arrow  missed  it,  just  as  it  fre- 
quently happens  in  these  operations.  After  all,  they  left  un- 
touched the  Pastor  and  the  elders  composing  the  session,  and  con- 
stituting the  only  primary  court  of  the  church.  We  proved,  as  a 
matter  of  fact,  by  Dr.  Wylie,  that  the  congregation  is  not  the 
session.  Doctor,  I  said,  who  compose  the  congregation?  Any 
who  come  to  hear  me  preach.  Would  you  allow  infidels  to  come 
and  hear  you  preach  ?  Most  certainly,  I  wish  they  would  come, 
and  I  would  do  what  I  could  to  persuade  them  of  their  errors. 
What  do  you  mean,  Dr.  Wylie,  by  a  member  of  the  church  ?  A 
person  who  is  examined  by  the  session,  and  who  is  regularly  ad- 
mitted by  the  session  on  profession  of  faith.  Thus  we  have  mem- 
bers of  the  church,  and  members  of  the  congregation,  and  a  totally 
different  thing — a  more  important  body — the  session  composed  of 
the  Pastor  and  elders.  Mr.  Guy  and  Dr.  McMurray  may  form 
members  of  this  congregation.  I  wish  they  would,  and  we  would 
try  to  see  whether  we  could  not  do  them  some  good.  I  will  advise 
Dr.  Wylie  to  preach  a  special  sermon  to  them,  the  very  first  time 
they  come  and  form  members  of  the  congregation.  As  to  mem- 
bers of  a  court,  that  is  an  entirely  different  matter.  They  might 
just  as  well  confound  citizens  of  Pennsylvania  with  judges  of 
Pennsylvania.     The  judges  of  our  Supreme  Court  are  citizens  of 


93 

Pennsylvania,  the  judges  of  our  District  Court  are  citizens  of 
Philadelphia,  but  they  are  something  more.  The  members  of  the 
session  are  members  of  the  congregation.  The  session  is  a  differ- 
ent thing  from  the  congregation.  Now,  sir,  let  them  abide  by 
their  own  work  as  they  have  got  it.  Let  them  take  their  decree  and 
make  the  most  of  it.  If  I  came  in  here  and  took  a  judgment  in 
your  Honor's  Court,  and  it  got  into  a  wrong  form,  I  should  not 
fail  to  be  reminded  of  it.  You  have  got  your  judgment  in  the 
wrong  way  ;  it  does  no  good ;  it  settles  nothing  at  all;  you  have 
left  out  the  description  in  your  praecipe  and  in  your  summons. 
Well,  let  them  take  their  judgment  as  they  have  it,  sir.  Our  ses- 
sion has  recognized  our  trustees,  and  our  session  is  up  to  this 
minute  of  time  totally  untouched  by  anything  the  Synod  has  done. 
As  to  the  session,  the  Synod  has  taken  no  action  at  all. 

These  relators  claim  to  be  trustees.  I  have  shown  that  it  is  one 
of  the  express  requirements  of  this  charter,  that  the  trustees  shall 
be  recognized  by  the  session,  as  being  in  full  communion  with  this 
Church.  Are  the  relators  recognized  by  the  session  ?  They  can- 
not be  trustees  unless  they  are  recognized  by  the  session.  The 
session  is  in  full  life;  nothing  has  been  done  to  impair  its  powers. 
Now,  Sir,  can  there  be  a  verdict  for  these  relators  ?  What  I  am 
aiming  at  now  is,  not  what  I  was  aiming  at  a  few  moments  a^o, 
that  the  Jury  shall  decide,  as  a  matter  of  fact,  that  there  was  no 
authority  on  the  part  of  this  Synod,  to  act,  and  if  there  was,  that 
it  acted  in  the  wrong  way.  What  I  say  now  is,  here  is  a  written 
paper  which  shows  that  the  relators  cannot  be  trustees  unless  they 
are  recognized  by  the  session.  The  relators  are  not  recognized  by 
the  session.  Our  trustees  are  recognized  by  the  session.  Therefore, 
after  everything  that  can  be  said  in  favor  of  the  action  of  Synod, 
and  its  regularity,  What  has  the  Synod  done  to  impair  the 
power  of  the  session?  This  is  an  important  part  of  the  charter; 
it  is  one  of  the  terms  and  conditions  on  which  it  was  accepted,  and 
according  to  the  terms  and  conditions  of  this  instrument,  the 
money  to  build  this  Church  was  invested.  One  of  these  conditions 
is,  that  no  man  shall  set  his  foot  on  that  property  as  trustee,  un- 
less he  has  been  recognized  by  the  session  of  the  Church. 
Why  then  shall  not  your  Honor  raise  the  right  hand  of  your 
official  power,  and  strike  down  the  case  at  once,  and  thus  utter  a 


94 

warning  to  every  man  who  is  disposed  to  consecrate  his  life  to  the 
wretched  business  of  disturbing  the  peace  of  a  church  ? 

I  have  only  one  point  more.  It  is  provided  in  the  charter  that 
there  shall  be  an  annual  election  for  trustees  on  the  first  Monday 
in  January  of  every  year,  of  which  notice  shall  be  given  two  weeks 
previously  from  the  pulpit  of  the  church.  We  proved,  the  other 
day,  where  this  Church  building  is  situated.  These  gentlemen 
went  off  to  Horticultural  Hall ;  they  went  to  the  old  hall  first,  and 
then  they  went  to  the  new  hall.  Was  notice  given  by  them  from 
the  pulpit  of  the  election  to  be  held  in  this  Church  building? 

By  the  Court :  There  was  notice  given  in  what  was  used  as  their 
church,  if  they  were  the  proper  body. 

Mr.  Porter.  No,  may  it  please  your  Honor,  even  if  they  were 
the  proper  body,  I  insist  that  no  proper  notice  was  given  of  an 
election  to  be  held  in  this  Church  at  the  time  required  by  the 
charter.  Suppose  they  were  the  proper  body,  why  did  they  not 
come  to  the  election  held  in  this  Church,  and  deposit  their  votes  ? 
Suppose  we  were  not  the  proper  body.  It  is  certain,  that 
if  I  am  required  to  vote  at  a  political  election  to  be  held  in  the 
8th  ward,  I  cannot  go  to  Camden  and  deposit  my  vote  there. 

By  the  Court:  Is  not  the  word  Church  in  the  charter,  the  place 
where  the  congregation  meets  for  worship  ? 

Mr.  Porter:  Even  that  would  not  do  them  much  good,  Sir,  be- 
cause they  gave  their  notice  in  one  hall  and  held  their  election  in 
another  hall.  It  means,  as  I  construe  the  word  Church,  the 
building  erected  and  occupied  under  the  charter,  from  which  they 
were  never  driven  out.  I  asked  one  of  their  witnesses,  would  you 
call  that  thing  you  have  erected  in  the  hall  a  pulpit? 

By  the  Court:  They  worshiped  in  the  new  hall  and  held  their 
election  in  the  old  hall,  did  they  ?  I  am  not  acquainted  with  the 
locality  of  these  halls.     Do  they  adjoin  each  other  ? 

Mr.  Porter :  No,  Sir  !  one  is  on  one  side  of  Locust  Street,  and 
the  other  is  on  the  other  side.  The  Church  is  in  one  place,  and 
these  halls  are  each  in  another  place,  almost  a  square  apart.  Now, 
the  point  I  make  is  this,  supposing  they  were  the  true  Church, 
and  that  all  these  monstrous  acts  on  the  part  of  the  Synod,  are  to 
be  regarded  as  effectual,  there  was  a  certain  particular,  definite 
place  designated  by  their  own  written  law,  as  that   at  which   they 


95 

were  to  vote.  That  was  at  the  place  for  which  the  notice  was 
given  by  us  and  ought  to  have  been  given  by  them.  They  gave  the 
notice  at  one  place  and  held  the  election  at  another  place.  I  submit, 
that  the  true  construction  of  the  place  is  the  church  building  in 
which  they  had  all  been  worshipping  up  to  the  time  of  the  difficulty. 
That  place  could  not  be  a  matter  of  doubt  to  any  of  them.  Sup- 
pose there  were  two  secessions,  one  party  goes  to  one  place  and 
the  other  goes  to  another.  How  then  ?  They  did,  it  is  true,  apply 
for  possession  of  the  Church  building,  and  we  would  not  give  it  up. 
We  would  not  give  them  the  church  put  up  and  built  with  our  own 
money,  in  which  the  services  had  been  held  for  so  many  years. 
No,  sir  !  we  refused  possession  of  the  church.  If  they  had  got 
the  church  under  that  demand,  and  got  possession  of  it,  there 
might  have  been  an  end  of  our  rights.  But  that  demand  for  the 
church  was  for  the  purpose  of  holding  the  church  and  keeping  it 
as  a  place  of  worship.  They  knew  the  very  day  on  which  the 
election  was  to  be  held.  Suppose  they  had  done  a  different  thing. 
Suppose  they  had  said  to  us,  we  propose  to  come  and  vote.  We 
should  have  said,  we  do  not  recognize  you.  You  are  not  mem- 
bers of  this  church ;  you  have  given  up  your  pews ;  you  have 
ceased  to  pay  pew  rent;  you  have  ceased  to  commune;  we  have 
settled  in  full  with  you  ;  we  have  no  charges  against  you  ;  you 
have  no  place  in  this  church  at  all ;  we  decline  to  receive  your 
votes.  Suppose  but  three  or  four  persons  had  so  tendered  their 
votes,  and  then  the  question  as  to  the  regularity  of  that  election 
had  come  up.  If  but  one  single  vote  had  thus  been  given  by  a 
person  entitled  to  vote,  it  would  have  determined  the  question. 
The  law  does  not  leave  the  matter  of  place  as  to  where  the  election 
can  be  held,  in  any  uncertainty.  That  building  was  the  place  for 
the  votes  to  be  deposited  ;  they  might  have  come  there  and  voted, 
and  did  not.  The  election  was  not  held  in  the  proper  place.  It 
was  not  for  them  to  say  we  will  not  make  any  attempt  to  vote, 
because  they  will  not  receive  our  votes. 

By  the  Court.  Suppose  there  had  been  one  party  in  this  con- 
gregation, and  they  had  shut  the  church  up,  locked  it  up,  and  had 
gone  to  worship  in  the  Horticultural  Hall, — could  they  have  held 
a  valid  and  legal  election  there  ? 

Mr.  Porter.     If  the  church  had  been   entirely  shut  up,  that 


96 

would  have  given  rise  to  a  different  state  of  affairs.  I  am  speaking 
of  the  holding  of  an  election  on  that  very  day,  when  the  church 
was  opened  expressly  for  the  purpose  of  an  election.  We  can 
imagine  other  facts.  Suppose  the  church  had  burned  down.  The 
law  would  undoubtedly  make  allowance  for  impossibilities.  I  am 
not  speaking  of  impossibilities.  I  am  speaking  of  the  case  where 
the  polls  are  open ;  in  which  they  are  kept  open  from  8  o'clock  in 
the  morning  to  9  o'clock  at  night.  Suppose  a  voter  in  Walnut 
Street  would  refuse  to  put  his  vote  in  the  proper  place,  saying  he 
knew  they  would  refuse  his  vote,  and  so  thinking,  he  gets  into  a  cab 
and  goes  to  Kensington  and  votes  there.  It  did  not  require  any  pos- 
session of  the  building  to  vote  here.  If  they  had  come  and  offered 
a  vote  here  even  at  the  outer  door,  and  the  vote  had  not  been  re- 
ceived, it  would,  if  the  voter  had  been  entitled  to  vote,  have  carried 
the  result.  Just  see  then  to  what  a  simple  point  this  long  controversy 
comes  down. 

In  conclusion  I  may  say  it  is  to  me  one  of  the  most  painful  con- 
troversies in  which  I  have  ever  been  engaged.  On  both  sides,  I 
say  it  to  the  credit  of  counsel, — the  late  counsel,  Judge  Strong, 
and  the  present  counsel,  Mr.  Price  and  Mr.  Brewster,  on  the  one 
side,  and  Mr.  Patterson,  Judge  Lowrie  and  myself  on  the  other,  have 
labored  and  toiled  systematically  for  peace.  Some  of  the  scenes  have 
been  to  me  inexpressibly  painful.  It  has  been  a  long,  protracted, 
and  almost  unprecedented  trial.  I  thought  I  had  seen  every  case 
that  could  come  before  a  court  of  justice  in  any  form,  from  the  sim- 
plest case  in  the  criminal  court,  up  to  the  court  of  the  last  resort. 
I  must  say,  however,  I  never  saw  a  case  tried  with  more  pa- 
tience and  more  care,  on  the  part  of  the  court,  than  this  has  been 
tried.  I  must  do  the  jury  the  credit  to  say  that  they  have  been 
very  patient  listeners  ;  and  I  hope,  gentlemen,  you  will  be  able  to 
render  a  verdict,  which  shall  give  tranquility  to  this  church,  and 
that  you  will  find  a  sufficient  recompense  for  your  labors  during 
these  many  weeks,  in  the  reflection  that  you  have  expended  all 
this  time  in  the  conscientious  performance  of  a  high  public  duty. 


Mr.  Justice  Williams'  Charge. 

Gentlemen  of  the  Jury: — This  cause  has  been  tried  with 
signal  ability  by  the  counsel  on  both  sides.  .It  has  occupied  an 
unusual  length  of  time,  and  you  have  given  to  the  evidence  and  to 
the  arguments  of  the  counsel,  your  patient  attention.  They  have 
aided  you,  as  they  best  could,  to  determine  the  evidence  upon  which 
you  are  to  pass.  It  only  remains  now  for  you  to  give  the  same 
patient  attention  to  the  instructions  which  the  Court  is  about  to 
deliver,  in  order  that  you  may  be  enabled  to  apply  the  law  as  laid 
down  by  the  Court  to  the  facts  as  you  shall  find  them. 

This  is  a  proceeding  by  a  writ  of  quo  warranto  issued  by  this 
Court,  under  the  provisions  of  the  act  of  14th  June,  1836.  The 
writ  was  issued  on  the  3d  of  October,  1869,  in  the  name  of  the 
Commonwealth  of  Pennsylvania,  at  the  relation  of  George  Gordon, 
John  Biggerstaff,  Ephraim  Young,  Robert  C.  Taylor,  James  Stew- 
art, Robert  Fletcher,  and  James  Boyd,  against  James  Graham, 
William  Ray,  Thomas  Johnston,  Thomas  M.  Kerr,  Charles  Will- 
iams, Abram  Walker,  and  James  Smyth,  to  show  by  what  authori- 
ty they  exercise  the  franchises,  offices,  privileges  and  liberties  of  a 
Board  of  Trustees  of  "The  First  Reformed  Presbyterian  Congre- 
gation in  the  City  of  Philadelphia."  The  writ  was  made  return- 
able on  the  first  Monday  of  January,  1870,  and  was  duly  served  on 
the  persons  named  therein  as  defendants. 

On  the  19th  of  March,  1870,  the  relators  presented  a  petition  to 
the  Court,  showing  that  their  term  of  office  as  trustees  of  the  said 
congregation  expired  on  the  first  Monday  of  January,  1870,  and 
that  on  that  day  they  had  been  duly  and  legally  re-elected  trus- 
tees of  the  said  congregation  for  the  year  1870,  and  that  Charles 
Williams,  Thomas  Johnston,  Abram  Walker,  James  Smyth,  Wm. 
G.  Porter,  John  Pettigrew,  and  George  H.  Stuart,  Jr.,  claimed  to 
hold  the  franchises  and  privileges  of  the  Board  of  Trustees  of  said 
congregation,  by  another  election  held  at  the  same  date,  and  pray- 
7  9< 


98 

ing  the  Court  to  make  an  order  substituting  the  petitioners  as  re- 
lators for  the  said  term,  and  the  said  Charles  Williams  and  the 
other  persons  named  in  the  petition,  claiming  to  hold  the  fran- 
chises and  privileges  of  the  Board  of  Trustees  of  said  congregation 
as  defendants.  And  thereupon,  on  the  26th  of  March,  1870,  the 
Court  made  the  order  of  substitution  prayed  for,  and  directed  that 
the  said  petitioners,  and  the  said  Charles  Williams,  and  others,  be 
substituted  as  relators  and  defendants.  On  the  5th  day  of  July, 
1870,  the  record  was  amended  by  inserting  the  date  of  March  2, 
1870,  in  place  of  the  first  Monday  of  January,  1870,  as  the  time 
at  which  George  H.  Stuart,  Jr.,  one  of  the  defendants,  claimed  to 
have  been  elected  a  trustee  of  the  said  congregation. 

In  the  suggestion  and  petition  filed  by  the  relators  in  this  case, 
as  amended  by  order  of  the  Court,  the  relators  allege :  First — 
That  "  The  First  Reformed  Presbyterian  Congregation  in  the  city 
of  Philadelphia"  is  a  corporation  duly  organized  under  an  act  of 
the  General  Assembly  of  the  Commonwealth  of  Pennsylvania,  ap- 
proved the  Gth  day  of  April,  A.  D.  1791,  as  will  appear  by  the 
charter  enrolled  in  the  Secretary's  office,  at  Ilarrisburg,  March 
19,  1816,  and  the  addition  thereto,  enrolled  in  said  office  Decem- 
ber 22,  1828,  a  copy  of  which  charter,  and  of  the  addition  or  sup- 
plement thereto,  is  set  out  in  the  suggestion.  Second — The  rela- 
tors further  allege  that  at  the  regular  annual  election  for  the  mem- 
bers of  the  Board  of  Trustees  of  said  congregation,  held  in  accord- 
ance with  the  terms  of  the  charter,  on  the  first  Monday,  the  third 
day  of  January,  1870,  the  said  relators  were  in  due  and  regular 
form  of  law  elected  as  a  Board  of  Trustees  of  said  congregation, 
and  have  been  recognized  by  the  session  of  the  said  congregation 
as  being  in  full  communion  with  the  said  church.  But,  notwith- 
standing the  premises  and  the  said  election,  the  said  Charles 
Williams,  Thomas  Johnston,  Abram  Walker,  James  Smyth,  Will- 
iam G.  Porter  and  John  Pettigrew,  during  all  the  time  since  the 
said  third  day  of  January,  1870,  and  the  said  George  H.  Stuart, 
Jr.,  during  all  the  time  since  the  2d  day  of  March,  1870,  have  used 
and  still  do  use  the  franchises,  offices,  privileges  and  liberties  of  a 
Board  of  Trustees  of  the  said  "  The  First  Reformed  Presbyterian 
Congregation  in  the  city  of  Philadelphia,"  and  during  the  said 
time  have  usurped  and  do  usurp  upon  the  Commonwealth  therein, 


99 

to  the  great  damage  and  prejudice  of  the  Constitution  and  laws 
thereof. 

On  the  31st  of  October,  1870,  the  defendants  filed  three  pleas 
in  answer  to  the  suggestion  of  the  relators. 

The  first  plea  is  filed  by  the  six  defendants  first  named  in  the 
record;  the  second  by  George  H.  Stuart,  Jr.,  the  other  defendant. 
Both  pleas  admit  the  incorporation  of  the  congregation,  under  the 
act  of  the  6th  of  April,  1791,  and  the  charter  to  be  as  the  same  is 
set  forth  in  the  suggestion  of  the  relators.  The  defendants  named 
in  the  first  plea  say  that  the  Commonwealth  ought  not  to  implead 
them  by  reason  of  the  premises  in  the  said  suggestion  and  petition 
set  forth,  because  they  say  that  they,  together  with  Thomas  M. 
Kerr,  were  duly  elected  and  chosen  Trustees  of  the  said  corpora- 
tion in  accordance  with  the  charter  thereof,  at  the  anuual  meeting 
of  the  said  corporation,  for  the  election  of  Trustees,  held  in  accord- 
ance with  the  charter,  on  the  first  Monday,  the  third  day  of  Jan- 
uary, 1870,  and  were  recognized  by  the  session  of  said  congrega- 
tion as  being  in  full  communion  with  the  said  church ;  and  that 
afterwards,  on  the  10th  of  January,  1870,  they  accepted  and 
took  upon  themselves  the  said  offices,  and  met  and  chose  a  Presi- 
dent, a  Treasurer,  a  Secretary  and  a  Sexton,  and,  from  thence- 
forth they  have,  by  virtue  of  the  said  election  and  by  that  war- 
rant, exercised,  and  do  still  continue  to  exercise,  in  the  city  of 
Philadelphia,  the  said  offices  of  trustees  of  the  said  corporation, 
and  the  franchises,  liberties  and  privileges  thereunto  belonging. 

The  second  plea  filed  by  the  other  defendant,  George  H.  Stuart, 
Jr.,  alleges  that  he  was  duly  elected  a  trustee  of  the  said  congre- 
gation to  fill  the  vacancy  occasioned  by  the  resignation  of  Mr. 
Thomas  M.  Kerr,  at  a  congregational  meeting  held  on  the  2d  of 
March,  1870,  by  the  qualified  voters  then  and  there  present ;  and 
that  he  was  recognized  by  the  session  of  the  said  congregation  as 
being  in  full  communion  with  this  church,  and  that  then  and  there 
he  accepted  and  took  upon  himself  the  said  office,  &c. 

In  their  third  plea  the  defendants  allege  that  the  relators  have 
not  been  since  the  1st  of  July,  1868,  and  are  not  now  corporators 
of  the  said  corporation  ;  without  this  that  the  said  relators,  or  any 
of  them,  were  on  the  first  Monday  of  January,  1870,  or  at  any 
other  time  before  or  since,  in  due  and  regular  form  of  law  elected 


100 

trustees  of  the  corporation  in  manner  and  form  as  in  the  said  sug- 
gestion and  petition  alleged. 

On  the  11th  of  November,  1870,  the  relators  filed  their  repli- 
cation to  the  defendants'  pleas,  traversing  the  allegations  contained 
in  them,  that  is,  denying  that  the  defendants  were  duly  elected 
trustees  of  the  said  congregation  in  the  manner,  place  and  form 
as  in  the  first  and  second  pleas  alleged,  and  averring  that  the  re- 
lators were  on  the  1st  of  July,  1868,  and  before  that  day,  and 
ever  since  that  time,  and  now  are  corporators  of  the  said  corpora- 
tion, and  in  due  and  regular  form  of  law  elected  trustees  of  said 
corporation. 

Under  the  issue  formed  by  the  pleadings,  the  questions  for  the 
determination  of  the  jury  are  : 

First — Were  the  defendants,  with  the  exception  of  Geo.  H. 
Stuart,  Jr.,  duly  elected  trustees  of  the  First  Reformed  Presby- 
terian congregation  in  the  city  of  Philadelphia  on  the  first  Mon- 
day of  January,  1870,  and  was  Geo.  H.  Stuart,  Jr.,  the  other  de- 
fendant, duly  elected  a  trustee  of  said  congregation  on  the  2d  of 
March,  1870  ? 

Second — Have  the  relators  been  corporators  of  said  corporation 
since  the  1st  of  July,  1868  ?  Are  they  now  corporators  or  mem- 
bers of  the  said  corporation,  and  its  duly  elected  trustees  ? 

The  congregation  to  which  both  parties  belonged  was  divided  in 
1868.  One  portion,  that  represented  by  the  defendants,  re- 
tained possession  of  the  church  building,  and  have  since  continued 
to  worship  there,  as  formerly,  under  the  care  of  their  pastor,  the 
Rev.  Dr.  T.  W.  J.  Wylie.  The  other  portion,  represented  by  the 
relators,  withdrew  to  the  building  known  as  the  Old  Horticultural 
Hall,  and  have  continued  to  worship  there  and  in  the  building 
known  as  the  New  Horticultural  Hall  since  the  last  Sabbath  in 
June,  1868,  and  is  now,  and  for  some  time  past  has  been,  under 
the  pastoral  care  of  Rev  A.  G.  Wylie.  Both  parties  are,  in  fact, 
separate  and  distinct  congregations,  each  having  a  pastor,  session 
and  board  of  trustees.  If  that  part  of  the  old  congregation  now 
worshipping  in  the  Horticultural  Hall  constitutes  the  corporation 
known  as  the  First  Reformed  Presbyterian  church  in  Philadelphia, 
then  the  relators  are  its  duly  elected  trustees.  But  if  the  portion 
which  retained  possession  of  the  church   building,    and  which  has 


101 

continued  to  worship  there  since  as  before  the  division  is  the  cor- 
poration, then  the  defendants  are  its  duly  elected  trustees. 

But,  in  order  to  determine  which  is  the  corporation  we  must 
trace  the  history  of  the  congregation  through  the  difficulties  and 
troubles  which  led  to  the  separation  ;  ascertain,  if  we  can,  its 
causes  ;  see  what  have  been  the  acts  of  the  respective  parties,  and 
what  has  been  the  action  of  their  Ecclesiastical  Courts,  so  far  as 
it  may  have  a  bearing  on  the  question,  and  in  this  way  determine, 
if  possible,  whether  the  relators  or  the  defendants  constitute  its 
Board  of  Trustees.  The  congregation,  as  the  evidence  shows,  was 
organized  about  the  year  1800,  and  obtained  its  charter  of  incor- 
poration in  1816.  It  first  met  for  worship  in  a  private  dwelling- 
house;  next  in  a  school-house;  then  in  a  small  church  on  St. 
Mary  street  ;  after  that,  in  a  church  on  Eleventh  street,  and  in 
1854  it  began  to  worship  in  a  church,  then  newly  erected  by  its 
members,  on  Broad  street,  where  it  continued  to  worship  in  peace 
and  harmony  until  the  commencement  of  the  differences  which  led 
to  its  separation  in  1868.  The  first  difficulty  of  which  we  have 
heard  arose  from  the  giving  of  a  communion  token  by  one  of  its  el- 
ders (Mr.  Geo.  H.  Stuart)  to  a  member  of  a  Presbyterian  Church 
not  in  ecclesiastical  connection  with  his  congregation.  The  next 
cause  of  offence  was  the  singing  of  hymns  in  the  colored  mission 
school,  under  the  charge  of  some  of  the  members,  but  having  no 
ecclesiastical  connection  with  the  congregation.  But  it  is  obvious 
that  these  differences  were  not  the  occasion  of  the  schism  which 
afterwards  took  place.  It  would  seem  to  have  had  its  origin  in 
the  apprehension  or  belief  on  the  part  of  that  portion  of  the  con- 
gregation represented  by  the  relators  that  it  was  the  purpose  and 
design  of  the  defendants  and  those  whom  they  represent,  to  do 
away  with  the  exclusive  use  of  the  Psalms  in  singing  God's  praise, 
and  to  introduce  the  singing  of  hymns  in  their  public  social  wor- 
ship ;  an  apprehension  or  belief  which  the  evidence  shows  to  have 
been  wholly  unfounded,  however  otherwise  it  may  have  seemed  to 
the  relators  and  their  friends  at  the  time,  and  however  i\  may 
have  arisen.  The  evidence  shows  that  a  hymn  was  never  sung  in 
the  public  social  worship  of  the  congregation  at  any  time  ;  and 
that  neither  the  pastor  nor  any  of  the  elders  or  other  members  of 
the  congregation  had  any  intention  of  introducing  the  singing  of 


102 

hymns  as  a  part  of  the  public  social  worship  of  the  church.  But 
the  impression  undoubtedly  prevailed  that  there  was  such  a  de- 
sign, and  the  discussion  which  took  place  at  the  meetings  called 
for  the  purpose  of  considering  "  the  basis  of  union"  proposed  for 
adoption  by  the  Philadelphia  National  Union  Convention  devel- 
oped the  fact  that  there  were  two  rival  antagonistic  parties  in  the 
church,  ready  to  try  their  strength  on  the  first  occasion  ;  and  an 
opportunity  was  presented  at  the  election  for  trustees  in  January, 
1808.  It  is  evident,  from  the  very  large  numbers  in  attendance 
at  this  meeting,  that  the  congregation  was  greatly  excited,  and 
many  of  them  seem  to  have  thought  that  the  question  of  the  sing- 
ing of  Psalms  to  the  exclusion  of  hymns  was  involved  in  the  elec- 
tion ;  for  this,  as  has  been  testified,  was  their  rallying  or  battle 
cry.  We  may  marvel  at  this  ;  for  the  result  of  the  election,  what- 
ever it  might  be,  could  have  no  possible  effect  or  bearing  on  the 
question  of  singing  Psalms  or  hymns  whatever.  It  was  a  matter 
with  which  the  trustees  had  nothing  to  do  ;  the  religious  services 
of  the  congregation  being  entirely  under  the  control  and  direction 
of  its  pastor  and  session,  subject  to  the  established  order  and 
usages  of  the  church.  By  the  express  provisions  of  the  charter, 
the  power  of  the  trustees  extends  only  to  the  temporalities  of  the 
Church  in  taking  care  of  the  property  of  the  congregation  ;  and 
without  the  authority  of  a  majority  of  the  congregation  the  trus- 
tees cannot  expend  a  sum  exceeding  one  hundred  dollars.  Their 
whole  duty  consists  in  taking  care  of  the  church  building  and 
other  property  belonging  to  the  congregation,  renting  the  pews, 
collecting  the  pew  rent,  and  paying  the  expenses — a  duty  which 
would  have  been  discharged  with  fidelity  and  to  the  satisfaction  of 
the  congregation  by  the  candidates  on  either  ticket,  and  yet  a 
matter  of  such  little  moment  to  the  congregation  as  it  Avould  seem 
was  made  the  occasion  of  separating  one  portion  of  the  congrega- 
tion from  the  other.  Heretofore  divisions  in  other  churches  have 
been  caused  by  a  radical  difference  of  opinion  in  matters  of  faith, 
doctrine,  church  order,  or  government  ;  but  this  congregation  of 
believers,  belonging  to  the  Reformed  Presbyterian  Church,  which 
traces  its  history  back  through  the  times  of  the  solemn  league  and 
covenant  to  the  reformation,  which  was  commenced  by  John  Knox, 
this  Church  of  the  Old  Covenanters,  which  came  out   of  so  great 


103 

tribulation  and  so  many  of  whose  members  sealed  their  testimony 
to  the  faith  with  their  blood,  and  "the  echo  of  whose  persecution 
rings  through  Scotland  to  this  hour,"  was  rent  in  twain  and  divi- 
ded asunder  on  the  question  whether  George  Gordon,  John  Big- 
gerstaff,  and  their  associates  on  the  written  ticket,  or  James  Gra- 
ham, Thomas  Johnston,  and  their  associates  on  the  printed  ticket, 
should  have  charge  of  its  temporalities.  But  so  it  was  to  be.  Both 
parties  met  in  a  high  state  of  excitement,  one  party  anxious  to 
enter  on  the  work  of  balloting  in  tbe  shortest  possible  time  ;  the 
other  intent  upon  first  obtaining  an  expression  of  opinion  of  the 
congregation  in  favor  of  its  pastor,  and  hoping,  perhaps,  to  gain 
something  by  the  delay.  And  then  commenced  that  scene  of  dis- 
cord, uproar  and  confusion,  described  by  the  witnesses,  when  some 
said  one  thing  and  some  another,  as  in  that  assembly  at  Ephesus, 
whose  uproar  the  town  clerk  could  with  difficulty  appease.  And 
so  here  the  congregation  was  at  length  appeased  and  the  balloting 
began.  Both  parties  intended  that  the  election  should  be  fairly 
conducted,  and  for  this  purpose  they  chose  four  tellers,  two  on 
each  side.  Almost  500  votes  were  deposited,  and  when  the  voting 
ceased  it  was  suggested  that   illegal  votes  had  been    cast,  and  a 

CO  o  ' 

motion  was  made  that  the  lists  and  the  ballot-boxes  should  remain 
in  the  hands  of  the  tellers  until  the  Session  and  the  Board  of 
Trustees  had  examined  them,  to  ascertain  whether  any  illegal 
votes  had  been  cast.  What  the  precise  words  of  the  resolution 
were,  or  whether  the  resolution  was  passed,  is  a  question  in  dis- 
pute. But  the  meeting  adjourned  to  hear  the  report  of  the  Ses- 
sion and  the  Board  of  Trustees  on  the  next  Monday  evening,  and 
on  that  evening  they  came  together,  and  the  Session  made  a  par- 
tial report,  asking  for  further  time,  and  giving  their  reasons  ;  and 
then  commenced  another  struggle  on  the  part  of  the  relators  to 
have  the  election,  which  took  place  the  previous  evening,  declared 
valid ;  and,  on  the  part  of  the  defendants,  that  no  such  resolution 
should  be  passed.  A  resolution  on  one  side  was  offered  and  a 
counter-resolution  on  the  other,  and  in  this  way  the  struggle 
was  kept  up  until  past  midnight.  In  the  meantime,  five  of 
the  relators,  who  had  received  the  highest  number  of  votes, 
retired  to  the  lecture-room  and  organized  by  choosing  a  President, 
a   Treasurer   and   a   Secretary ;  and  at   last,   on   motion    of  Mr. 


104 

Alexander,  the  meeting  was  turned  into  a  midnight  meeting,  and 
after  prayer,  adjourned  to  meet,  as  announced  by  the  Chairman 
at  the  call  of  the  Session  and  the  Board  of  Trustees,  though  it  is 
said  that  this  is  no  part  of  the  motion,  and  that  no  such  vote  was 
passed,  hut  they  came  together  on  the  13th  of  February  at  the 
call  of  the  Session  and  Board  of  Trustees  to  hear  their  report  to 
the  effect  that,  after  having  carefully  examined  the  list  of  voters, 
they  had  ascertained  that  127  illegal  votes  had  been  cast. 

A  motion  Was  made  to  accept  the  report,  the  vote  was  taken, 
and  declared  carried.  A  motion  was  then  made  to  adjourn,  put 
to  the  meeting,  and  declared  carried.  And  then  commenced  an- 
other scene  of  disorder,  and  an  attempt  to  reorganize  by  the  elec- 
tion of  another  chairman;  and  at  last  the  congregation  reluctantly 
dispersed. 

Now  then,  gentlemen,  if  this  congregation — one  side  or  the  other 
— had  then  come  into  this  Court  with  this  very  proceeding  that  we 
are  now  trying,  it  would  have  been  a  very  simple  question. 

All  that  we  should  have  had  to  do  would  have  been  to  have  had 
the  voters  before  us,  and  to  ascertain  whether  they  were  legally 
entitled  to  vote,  and  the  result  of  the  contest  would  then  have  been 
far  different  from  what  it  will  be  now.  The  candidates  of  the  suc- 
cessful party  would  have  been  put  in  office,  and  the  congregation 
would  not  have  been  divided;  but,  as  the  controversy  now  stands, 
it  involves  the  question  as  to  which  party  is  entitled  to  the  posses- 
sion of  the  church  and  the  property  belonging  to  the  congregation  ; 
for  it  is  evident  that  these  parties  can  never  worship  together  again 
in  peace  and  harmony.  But,  instead  of  doing  this,  both  parties 
went  into  their  Ecclesiastical  Courts  and  invoked  their  aid,  and 
instead  of  settling  the  question  they  made  it  more  complicated  and 
difficult — one  of  the  most  complicated  and  difficult  I  have  ever 
been  called  to  try.  There  were  protests  and  appeals  from  the  ac- 
tion of  the  session  in  taking  cognizance  of  this  matter,  which  wTere 
altogether  out  of  order. 

The  Session  was  not  acting  in  its  judicial  capacity.  It  had  no 
right  to  act,  unless  the  authority  was  given  to  it  by  the  congrega- 
tion, and  if  no  authority  was  given  by  the  congregation,  it  had  no 
right  to  act  whatever,  and  its  whole  action  was  a  nullity.  And 
then  charges  against  two  of  the  elders,  and  charges  against  three 


105 

of  the  trustees  were  preferred,  and  a  committee  appointed  to  pre- 
pare libels  against  them.  Then  declinatures  and  appeals  to  Pres- 
bytery and  then  Presbytery  met,  and  some  of  these  papers  were 
received,  and  some  were  rejected  as  being  irregular,  and  a  Com- 
mission was  appointed  by  Presbytery  to  come  down  to  this  church 
to  try  and  settle  its  difficulties.  Commissioners  met  these  parties, 
informally,  and  adjourned  to  meet  after  Synod. 

The  Synod  met  in  Pittsburgh,  and  then  these  parties,  Dr. 
McMurray  and  Mr.  Guy,  presented  a  remonstrance,  and  Mr.  Young 
and  some  others,  libels  and  papers  of  one  sort  and  another,  all  of 
which  were  referred  to  their  committee  on  discipline,  and  their  com- 
mittee on  discipline  made  a  report  to  the  Synod,  and  the  Synod 
adopted  that  report.  One  of  the  things  proposed  in  which  was  to 
revoke  the  sentence  of  suspension  against  Dr.  McMurray  and  Mr. 
Guy,  which  had  been  pronounced  in  the  Session. 

Then  they  undertook  to  settle  one  of  the  questions  that  we  are 
now  trying,  viz. :  Whether  the  Session  and  Board  of  Trustees  had 
the  right  to  determine  who  were  entitled  to  vote  at  the  election  ? 
Then  they  appointed  a  commission  to  come  down  and  settle  the 
whole  difficulty  and  issue  the  whole  case;  and,  to  make  sure  work, 
they  enjoined  all  the  lower  judicatories  from  proceeding  in  the 
cases  then  pending  before  them,  or  that  might  come  before  them, 
growing  out  of  the  difficulties  in  this  congregation,  and  forbade  the 
parties  from  impleading  each  other  in  relation  to  said  difficulties ; 
and  then,  or  before  this,  they  suspended  Mr.  Stuart ;  and  after  the 
Synod  adjourned  this  Presbytery  was  called  together;  and,  after 
reciting  its  grievances,  it  resolved  to  suspend  relations  to  the 
Synod,  and  then  when  this  Commission  came  down,  it  took  testi- 
mony showing  that  the  Presbytery  had  suspended  its  relations  to 
Synod,  and  it  then  undertook  to  declare  Presbytery  to  be  out  of 
the  jurisdiction  of  the  General  Synod,  and  recognized  two  of  the 
parties  represented  here  as  elders,  and  the  other  officers  and  mem- 
bers that  might  adhere  to  the  congregation,  and  entitled  to  all  its 
rights  and  privileges.  And  then  the  Synod  of  18G9  ratified  and 
confirmed  a  part  of  this  action,  and  declared  this  Presbytery,  with 
which  this  congregation  is  connected,  to  be  out  of  its  jurisdiction. 

This  is  an  outline  of  the  history  which  has  grown  out  of  the  work 
that  was  done  on  that  evening,  when  almost  five  hundred  members 


106 

of  this  congregation  came  together  for  the  purpose  of  electing  trus- 
tees, who  should  have  charge  of  its  temporalities  for  one  year. 

The  relators  contend  : 

First. — That  they  were  elected  trustees  at  the  election  in  Janu- 
ary, 18G8,  and  that  they  were  wrongfully  kept  out  of  the  said 
offices  by  the  defendants.  That  the  party  they  represented, 
though  in  the  majority,  were  excluded  from  the  church  by  the 
party  represented  by  the  defendants,  and  were  compelled  to  with- 
draw from  the  church  and  organize  for  worship,  as  they  did  else- 
where ;  that  they  have  kept  up  their  organization  ever  since,  and 
that  they  were  duly  elected  trustees  of  the  corporation  on  the  first 
Monday  of  January,  1870,  and  that  in  virtue  of  said  election,  they 
are  entitled  to  have  charge  of  the  temporalities  of  the  church. 

Second. — That  they  are  in  regular  connection  with  the  General 
Synod,  to  whose  jurisdiction  and  authority  the  congregation  com- 
prising this  corporation  is  subordinate,  and  that  they  have  been 
recognized  by  the  Synod  as  the  First  Reformed  Presbyterian  Con- 
gregation in  Philadelphia. 

Third. — That  the  defendants  are  not  in  connection  with  the 
Synod,  nor  are  they  in  subordination  to  its  authority,  but  have 
been  declared  to  be  without  its  jurisdiction. 

The  defendants  on  the  other  hand,  deny  that  the  relators  were 
elected  trustees  of  the  congregation  in  1868,  and  they  contend  that 
there  was  no  election,  on  account  of  the  great  number  of  illegal 
votes,  and  that  the  Session  and  Board  of  Trustees,  to  whom  the 
matter  was  referred,  so  decided  ;  and  that  their  decision  was  bind- 
ing on  the  question;  they  deny  that  the  party  represented  by  the 
relators  constituted  a  majority  of  the  congregation,  or  that  they 
were  excluded  from  the  church  as  a  place  for  worship,  but  only 
from  the  charge  of  its  temporalities ;  and  they  allege  that  the  re- 
lators voluntarily  withirew  and  organized  a  separate  and  distinct 
congregation- elsewhere,  calling  and  settling  another  preacher,  and 
that  thereby  they  have  ceased  to  be  members  of  the  congregation, 
and  have  lost  their  rights  as  corporators. 

Second. — They  contend  that  they  have  not  ceased  to  be  mem- 
bers of  the  corporation  in  consequence  of  any  action  on  the  part 
of  their  Presbytery,  or  of  the  Synod,  because  they  say  that  the 
Presbytery  had  the  right  to  pronounce  the  act  of  suspension,  and 


107 

that  the  acts  of  the  Synod  were  unconstitutional,  illegal,  arbitrary 
and  oppressive,  and  in  palpable  violation  of  the  laws  and  usages 
of  the  Church. 

Were  the  relators  elected  trustees  of  the  corporation  at  the  con- 
gregational meeting  in  January,  1868  ? 

It  is  admitted  that  they  received  a  majority  of  the  votes  polled, 
but  it  is  conceded  that  they  were  not  declared  to  be  elected. 
Whether  they  were  elected  or  not  depends  upon  the  action  of  the 
congregation.  Did  the  congregation,  after  the  ballots  had  all  been 
received,  and  before  they  had  been  counted,  on  motion,  order  that 
the  votes  polled  remain  in  the  custody  of  the  tellers  until  the  list 
of  the  parties  voting  should  be  submitted  to  the  Session  and  Board 
of  Trustees  for  their  examination,  in  order  to  ascertain  whether  all 
the  votes  cast  were  legal,  and  that  no  certificates  of  election  should 
be  given  until  it  had  been  ascertained  that  no  illegal  votes  had 
been  cast?  Was  such  a  resolution  passed?  And  were  the  votes 
then  counted  and  the  result  announced,  with  the  understanding 
and  agreement  of  all  parties  duly  expressed  that  the  validity  of 
the  election  should  be  under  the  restriction  imposed  by  the  resolu- 
tion? Whether  such  a  resolution  was  or  was  not  passed  is  a  ques- 
tion of  fact  for  the  determination  of  the  jury,  and  in  regard  to 
which  the  evidence  is  conflicting.  The  Session  and  Board  of 
Trustees  had  no  authority  to  decide  upon  the  question  of  legality 
or  illegality  of  the  votes  cast,  or  to  determine  the  validity  of  the 
election,  unless  they  were  expressly  authorized  to  do  it  by  a  vote 
of  the  congregation.  But  it  was  competent  for  the  congregation 
to  refer  the  question  of  the  validity  of  the  election  to  them  for 
their  determination,  and  to  agree  to  abide  by  their  decision  ;  and, 
if  the  congregation  did  refer  the  question  to  them,  and  did  not  re- 
voke the  authority,  the  relators  are  bound  by  their  decision,  if  it 
was  made  in  good  faith,  though  they  may  have  been  mistaken  in 
deciding  that  some  of  the  parties  named  on  the  list  were  not  en- 
titled to  vote. 

If  the  jury  find  that  the  validity  of  the  election  was  referred  to 
the  decision  of  the  Session  and  Board  of  Trustees,  and  that  in 
good  faith  they  decided  that  the  election  was  invalid,  then  the  re- 
lators were  not  entitled  to  act  as  trustees,  and  the  old  Board  pro- 
perly continued  in  office  until  the  next  annual   election.     But  if 


108 

the  jury  find  that  the  relators  were  duly  and  legally  elected  trus- 
tees of  the  congregation  in  1868,  they  will  give  to  the  fact  such 
weight  as  it  may  be  entitled  to  in  determining  the  issues  raised  by 
the  pleadings  in  this  case.  Were  the  defendants,  then,  as  they 
allege,  or  were  the  relators  elected  trustees  in  1870  ? 

I  propose  to  submit  this  question  to  the  jury  without  reference 
to  the  action  which  has  been  had  in  the  ecclesiastical  judicatories 
with  which  this  con<Tre£ation  was  connected  when  the  troubles  be- 
gan,  which  ended  in  its  separation,  before  proceeding  to  consider 
the  effect  of  that  action. 

It  is  well  settled  that  a  majority  of  a  church  congregation  has 
the  right  to  direct  and  control  in  all  church  matters,  consistently 
with  the  laws  of  its  own  organism,  or  of  the  denomination  to  which 
it  belongs.  This  right  is  inherent  in  every  congregation;  and  so 
long  as  there  is  no  departure  from  any  article  of  its  faith  or  creed, 
nor  any  violation  of  the  system  of  religious  principles  adopted  by 
it,  the  majority  have  the  right  to  control  its  affairs,  whether  it  is 
incorporated  or  unincorporated,  unless  it  is  otherwise  provided  by 
its  charter  or  laws.  Under  the  charter  of  this  congregation,  a 
majority  of  the  qualified  voters  have  the  right  to  control  its  affairs 
and  to  choose  the  Board  of  Trustees  to  whose  care  its  temporali- 
ties are  committed.  Did  the  party  represented  by  the  relators 
constitute  a  majority  of  the  congregation  at  the  time  of  the  sepa- 
ration ?  Were  they  excluded  from  the  Church  and  compelled  to 
leave  by  the  defendants  ?  If  so,  they  did  not  lose  their  rights  as 
corporators  by  being  shut  out  of  the  church  building,  and  they  had 
the  undoubted  right  to  organize  as  they  did,  elsewhere,  and  to 
elect  trustees;  and  the  trustees  so  elected  are  the  trustees  of  the 
corporation,  and  entitled  to  the  charge  of  its  temporalities.  But 
if  they  were  not  excluded  from  the  church  building,  but  voluntarily 
withdrew  from  it,  and  organized  elsewhere,  whether  they  were  a 
majority  or  minority  of  the  congregation,  the  trustees  whom  they 
elected  are  not  the  trustees  of  the  congregation. 

They  did  not  withdraw  because  there  was  any  change  in  the 
system  of  religious  principles  adopted  by  the  congregation  when  it 
was  established,  nor  because  there  was  any  change  in  its  ancient 
order  or  mode, of  worship.  The  same  doctrines  were  taught,  the 
same  Psalms  were  sung  as  when  the  congregation  was   first  organ- 


109 

ized,  and  in  this  respect  all  things  continued  as  from  the  beginning, 
without  any  change  whatever.  And  if  the  relators  were  duly 
elected  the  trustees  of  the  congregation  in  1868,  and  if  they  were 
wrongfully  prevented  from  acting  as  such,  the  party  that  voted 
for  them,  even  if  they  were  a  majority  of  this  congregation,  had 
no  right,  voluntarily,  to  withdraw  from  the  congregation  and  to 
organize  elsewhere,  and  claim  the  rights  of  corporators.  It  was 
their  duty  to  remain  in  the  church  if  they  wished  to  retain  the 
rights  of  corporators,  and  to  seek  their  redress  by  legal  means. 
If  the  jury  find  that  the  party  represented  by  the  relators  consti- 
tute a  majority  of  the  congregation,  and  that  they  were  excluded 
from  the  church  building  and  compelled  to  go  elsewhere  to  worship, 
then  they  had  the  right  to  organize  as  they  did,  in  the  building 
known  as  Horticultural  Hall ;  and  if  they  have  kept  up  their  or- 
ganization, and  have  duly  elected  the  relators  trustees,  they  are 
entitled  to  hold  the  offices  and  franchises  of  the  corporation,  and 
your  verdict  should  be  in  favor  of  the  Commonwealth.  But  if  the 
relators,  and  the  party  which  they  represent,  were  not  excluded 
from  the  church  ;  if  they  might  have  remained  and  worshipped 
there,  as  formerly  ;  if  they  were  not  compelled  to  leave,  but  volun- 
tarily withdrew,  then  the  relators  are  not  the  trustees  of  the  cor- 
poration, unless  they  are  so  in  virtue  of  the  action  which  has  been 
had  in  the  ecclesiastical  judicatories,  with  which  the  congregation 
was  connected,  at,  and  immediately  before  the  separation  took 
place. 

What,  then,  is  the  effect  of  the  ecclesiastical  action  given  in 
evidence  upon  the  rights  of  the  respective  parties  ?  Have  the  de- 
fendants ceased  to  be  the  corporators  in  consequence  of  this  action, 
and  are  the  relators  in  virtue  thereof,  its  legal  representatives  and 
trustees? 

Passing  by  the  action  which  took  place  in  the  Session  and  Pres- 
bytery before  the  separation  took  place,  as  wholly  irrelevant"  to  the 
question,  let  us  come  at  once  to  the  action  of  the  Synod,  which 
met  at  Pittsburg,  in  May  1868.  And  we  need  not  stop  here  to 
consider  whether  Synod  had  jurisdiction  of  the  case  of  Mr.  Stuart 
in  the  manner  in  which  it  was  brought  before  it,  or  whether  the  act 
or  decree  of  suspension  which  it  pronounced,  was  valid,  or  void  for 
want  of  jurisdiction.     It  is  manifest  that  whether  just   or  unjust, 


110 

valid  or  void,  it  did  not  change  or  affect  the  relations  existing  be- 
tween the  congregation  or  the  Synod,  in  any  way  whatever. 

It  neither  suspended  nor  severed  the  connection.  The  only  ac- 
tion which  has  any  bearing  upon  the  question  in  the  aspect  in 
which  we  are  now  considering  it  is  that  which  took  place  on  the 
remonstrance,  or  the  petition  and  the  other  papers  presented  by 
Dr.  McMurray,  Robert  Guy,  and  others.  If  that  action  is  null 
and  void  because  it  was  not  warranted  or  authorized  by  the  laws 
and  usages  of  the  Church ;  if  the  Synod  has  no  power  or  authority 
to  do  what  it  did  or  attempted,  then  it  is  to  have  no  influence  in 
determining  whether  the  relators  or  defendants  are,  or  are  not,  the 
trustees  of  the  congregation. 

What  then  did  the  Synod  first  do  which  may  possibly  have  some 
bearing  on  the  question  at  issue  ?  It  revoked  the  action  of  sus- 
pension pronounced  by  the  Session  on  Dr.  McMurray  and  Mr. 
Guy,  and  it  unquestionably  had  authority  to  do  this,  if  it  had 
jurisdiction  of  the  case  by  appeal  or  otherwise.  But  if  the  case 
was  not  before  the  Synod  by  appeal  or  in  any  other  mode  known 
to  its  laws  and  usages,  then  it  had  no  jurisdiction  and  no  authority 
to  revoke  the  suspension,  and  its  decree  was  a  nullity,  and  it  was 
not  binding  on  the  lower  judicatory,  and  it  was  not  an  act  of  in- 
subordination on  the  part  of  the  Session  to  disregard  it.  Under 
the  laws  of  the  Church  as  contained  in  the  Book  of  Discipline 
given  in  evidence,  and  which  are  binding  upon  all  of  its  judicato- 
ries, from  the  highest  to  the  lowest,  the  Synod  has  no  more  author- 
ity to  revise  or  revoke  the  judgment  or  sentence  pronounced  by 
any  of  the  lower  j  udicatories  if  the  case  is  not  before  it,  than  this 
Court  would  have  to  revise  and  reverse  a  judgment  of  any  of  the 
lower  courts  that  was  not  brought  before  it  in  some  way  known  to 
and  provided  tor  by  the  law.  And  if  this  Court  should  reverse  a 
judgment  of  one  of  the  lower  courts  without  having  the  record 
brought  before  us,  and  when  no  writ  had  been  sued  out  to  bring  up 
the  record,  or  no  appeal  had  been  taken,  the  Court  below  would  be 
justified  in  disregarding  the  judgment  or  decree  of  reversal,  with- 
out being  guilty  of  insubordination  or  want  of  due  respect  to  the 
lawful  decision  of  this  Court.  The  validity  of  the  decree  revoking 
the  suspension  turns  upon  the  question  whether  the  case  was  before 
the  Synod  in  any  of  the  forms  known  to  its  law.     The   fact  that 


Ill 

Synod  took  jurisdiction  of  the  case,  or  of  the  cases,  for  the  records 
of  the  session  show  that  there  were  two  cases — and  that  there  were 
separate  charges  in  each  case,  is  presumptive  evidence  that  the  mat- 
ter was  properly  before  it,  and  it  lies  on  the  defendants  to  show  con- 
clusively that  it  was  not.  I  do  not  find  in  any  of  the  papers  given  in 
evidence,  that  there  was  any  appeal  from  the  precautionary  sentence 
of  suspension.  Nor  do  I  see  from  any  of  the  papers  to  which  my 
attention  has  been  called,  that  it  was  brought  up  in  any  of  the 
other  forms  prescribed  and  provided  for  by  the  Book  of  Discipline, 
and  it  has  been  testified  by  witnesses  familiar  with  the  laws  and 
usages  of  this  Church,  that  it  was  not  judicially  before  the  Court. 
The  jury  will  then  determine,  as  matter  of  fact,  whether  Dr.  Mc- 
Murray  and  Mr.  Guy  did  bring  up  the  sentence  pronounced  against 
them  by  the  session  before  the  Synod,  by  appeal,  petition,  or  other 
form  of  writing.  Their  mere  verbal  statements  before  the  Com- 
mittee  on  Discipline,  if  any  such  were  made,  would  not  be  suffi- 
cient to  give  the  Synod  jurisdiction  in  the  matter.  But  it  lies  upon 
the  defendants  to  satisfy  you  clearly  by  evidence,  about  which 
there  can  be  no  mistake,  that  the  case  was  not  properly  before  the 
Synod  under  its  law  and  usages.  It  is  true  that  this  Court  has  no 
jurisdiction  to  annul  or  set  aside  the  decree  or  judgment  of  the 
Synod,  but  we  can  and  ought  to  declare  that,  if  judged  by  the  laws 
and  usages  of  the  Church,  it  was  void,  because  the  Synod  had  not 
judicial  cognizance  of  the  sentence  which  it  undertook  to  revoke; 
that  then,  it  cannot  be  allowed  to  have  any- effect  upon  the  rights 
of  the  parties  to  this  controversy  whatever. 

The  next  question  is,  had  the  Synod  any  authority  over  the 
subject  matter  embraced  in  the  second  resolution  ?  If  it  had,  then 
its  decision  is  final  and  conclusive  of  the  question,  and  this  Court 
cannot  rejudge  the  matter,  but  is  bound  to  instruct  the  jury  that 
the  joint  action  of  the  Session  and  Board  of  Trustees  in  the  matter 
referred  to  is  illegal,  and  of  no  effect — for  so  the  Synod  declares. 
But  ecclesiastical  courts  have  no  civil  jurisdiction  whatever — much 
less  have  they  the  supervision  and  control  of  corporations.  The 
laws  have  not  conferred  this  branch  of  equity  jurisdiction  upon 
them,  but  have  vested  it  in  courts  having  civil  jurisdiction.  The 
jurisdiction  of  church  courts  is  purely  ecclesiastical.  This  is  the 
doctrine,  not  only  of  the  common  law,  but  also  of  the  ecclesiastical 


112 

law  of  this  church.  "  Synods  and  Councils  are  to  handle  or  con- 
clude nothing  but  that  which  is  ecclesiastical,  and  are  not  to  inter- 
meddle with  civil  affairs." — Confession  of  Faith,  ch.  31,  sec.  5.  - 

The  Synod  next  appointed  a  commission,  consisting  of  four 
ministers  and  three  ruling  elders,  to  whom  it  referred  the  whole 
matter  pertaining  to  the  difficulties  existing  in  this  congregation, 
and  clothed  them  with  synodical  powers,  and  gave  them  authority 
to  issue  the  whole  case  ;  and,  at  the  same  time,  it  suspended  and 
restrained  the  Session  from  the  exercise  of  all  judicial  functions  in 
any  matter  or  matters  pertaining  to  the  present  difficulties  in  said 
congregation,  or  considering  or  issuing  in  their  judicial  capacity  as 
a  Session  any  case  relating  to  said  difficulties  ;  and  it  also  restrained 
and  prohibited  the  Philadelphia  Reformed  Presbytery,  to  which  this 
congregation  was  attached,  from  considering  or  issuing  any  case 
then  pending  before  them  or  that  might  thereafter  be  brought 
before  them  relating  to  the  existing  difficulties  in  said  congrega- 
tion. It  is  conceded  by  the  defendants  that  the  Synod  had  power 
to  appoint  a  Commission,  but  the  defendants  deny  that  it  had 
power  or  authority  to  enjoin  the  lower  judicatories  from  proceeding 
in  the  cases  then  before  them.  And  I  have  not  been,  able  to  dis- 
cover any  authority  for  it,  either  in  their  Book  of  Discipline,  or  in 
any  of  the  standards  recognized  and  adopted  by  the  Church ;  and 
it  has  been  testified  by  those  who  are  familiar  with  its  ecclesiastical 
laws  and  usages,  that  there  is  no  law  or  precedent  to  justify  it.  If 
this  fact  be  so,  then  you  should  give  no  weight  to  this  action  of  the 
Synod  in  determining  whether  the  defendants  or  the  relators  are 
the  duly-elected  trustees  of  the  congregation. 

We  come  now  to  the  action  of  the  Commission.  It  was  clothed 
with  all  the  judicial  powers  of  the  Synod  in  regard  to  the  difficul- 
ties existing  in  this  congregation,  and  had  authority  to  issue  the 
whole  case,  but  it  had  no  jurisdiction  or  authority  over  the  Pres- 
bytery to  which  this  congregation  belonged,  for  none  were  con- 
ferred upon  it  ;  and  how  did  it  exercise  the  power  with  which  it 
was  clothed  by  the  Synod  ?  It  issued  a  citation  against  the  Rev. 
T.  W.  J.  Wylie,  D.D.,  the  pastor  of  the  church,  and  against  six 
members  of  the  congregation,  three  of  whom  were  trustees,  two 
elders,  and  the  other  who  was  both  a  trustee  and  elder.  Only  one 
citation  was  served  upon  them  by  leaving  a  copy  at  their  residences, 


113 

to  appear  the  next  morning  at  9  o'clock — whereas  the  book  requires 
that  three  citations  shall  be  served  before  a  party  can  be  proceeded 
against  in  his  absence.  But  this  want  of  conformity  to  the  require- 
ments of  the  book  is  immaterial,  as  the  Commission  did  not  pro- 
ceed to  try  or  pass  sentence  upon  them.  But  it  did  proceed  to 
take  testimony  in  regard  to  the  action  of  the  Presbytery,  a  subject 
over  which  it  had  no  jurisdiction,  for  none  as  we  have  seen  was 
conferred  upon  it  by  the  terms  of  its  Commission  ;  and  then  it  pro- 
ceeded to  declare  the  Presbytery  out  of  the  jurisdiction  of  General 
Synod  and  of  this  Commission.  It  undoubtedly  had  power  to  de- 
clare the  Presbytery  out  of  the  jurisdiction  of  the  Commission — 
for  it  never  was  within  its  jurisdiction — but  it  had  no  power  to  de- 
clare it  to  be  without  the  jurisdiction  of  General  Synod  ;  and  this 
declaration,  so  far  as  it  is  to  be  regarded  as  the  act  of  the  Com- 
mission, was  utterly  void.  But  this  Commission  did  more — with- 
out examining  a  single  witness  or  taking  any  testimony  whatever 
— without  any  notice  to  the  pastor  and  Session  or  any  member  of 
this  congregation  ;   it  resolved 

"  That  Dr.  A.  S.  McMurray  and  Robert  Guy,  ruling  elders, 
with  the  officers  and  members  whose  names  appear  on  the  various 
papers  submitted  to  Synod  at  its  late  meeting,  and  by  Synod  re- 
ferred to  this  Commission,  together  with  such  others  as  may  adhere 
to  them,  be  and  they  hereby  are  declared  to  be  the  First  Reform- 
ed Presbyterian  Congregation  of  Philadelphia,  and  as  such  entitled 
to  all  the  rights  and  immunities  appertaining  thereto,  and  by  this 
Commission,  in  the  exercise  of  the  power  entrusted  to  it  by  Synod, 
are  hereby  placed  under  the  care  of  the  Second  Reformed  Presby- 
tery of  Philadelphia." 

Now,  if  the  Commission  had  authority  under  the  judicial  powers 
conferred  on  it  by  the  Synod  to  pass  this  resolution,  and  if  the 
act  is  legal  and  valid,  it  settles  the  controversy  in  this  case ;  for 
the  Commission  declare  Dr.  McMurray  and  Robert  Guy,  Ruling 
Elders,  with  the  officers,  (meaning  thereby  the  relators),  and  the 
members  whose  names  appear  on  the  various  papers  submitted  to 
Synod  to  be  the  First  Reformed  Presbyterian  Congregation  of 
Philadelphia,  and  as  such  entitled  to  all  the  rights  and  immunities 
appertaining  thereto.  Now,  if  the  Commission  had  the  right  to  de- 
clare Dr.  McMurray  and  Mr.  Guy,  and  the  other  persons  referred 
8 


114 

to,  and  all  others  who  might  adhere  to  them  to  be  "  The  First  Re- 
formed Presbyterian  Congregation  of  Philadelphia,"  I  am  quite 
certain  that  they  had  no  right — and  so  instruct  the  jury — to  de- 
clare them  entitled  to  all  the  rights  and  immunities  appertaining 
thereto,  so  as  to  make  their  decision  final  and  conclusive  upon  this 
Court ;  and  I  am  inclined  to  think  that  the  Commission,  under  the 
judicial  powers  conferred  upon  it  by  the  Synod,  had  no  warrant 
or  authority  for  their  act  in  detaching  a  portion  of  the  congrega- 
tion, under  the  pastoral  care  of  Dr.  Wylie,  from  the  remainder  of 
the  congregation,  and  declaring  it  to  be  the  congregation.  If  they 
had,  then  Dr.  Wylie  was  their  pastor  ;  for  no  attempt  was  made 
to  dissolve  his  pastoral  relations  to  his  congregation  ;  and  it  would 
follow  that  he  is  still  their  pastor,  and  not  the  rightful  pastor  of 
the  congregation  that  now  worship  in  the  church  on  Broad  street. 
The  Presbytery,  on  petition,  may  set  off  a  portion  of  a  congrega- 
tion and  organize  another  church,  but  it  cannot  split  a  church  in 
twain  and  declare  which  part  is  the  church.  It  seems  to  me  that 
such  a  proceeding  is  not  a  judicial  act,  and  if  it  is  a  legislative  act, 
I  very  much  question  whether  it  is  competent  for  the  Synod  to 
delegate  legislative  power  and  authority  to  a  Commission  ;  and  I 
therefore  instruct  the  jury  that  the  rights  and  immunities  of  the 
congregation  were  not  vested  solely  in  Dr.  McMurray,  Mr.  Guy 
and  the  officers  and  other  members  referred  to,  together  with  such 
others  as  might  adhere  to  them,  by  this  act  of  the  Commission,  and 
that  the  connection  with  i he  Synod  of  that  portion  of  the  congre- 
gation which  remained  in  possession  of  the  church  was  not  thereby 
dissolved. 

And  this  brings  us  to  the  question  as  to  the  effect  of  the  resolu- 
tion of  Presbytery  suspending  its  relations  to  the  Synod.  Was 
this  an  act  of  secession — an  absolute  severance  of  the  relations- 
existing  between  them,  as  has  been  contended  by  the  counsel  for 
the  relators ;  or  was  it,  as  the  resolution  declares  it  to  be,  a  sus- 
pension of  relations  until  the  action  complained  of  should  be  re- 
voked, or  until  the  Presbytery  obtain  further  light;  and  was  it 
their  intention  not  to  sever  the  tie  which  bound  them  to  Synod, 
but  to  "remain  in  the  Reformed  Presbyterian  Church,  maintaining 
her  organization  and  endeavoring  to  develop  and  apply  her  prin- 
ciples in  their  proper  application  to  the  age  and  country  in  which 


115 

we  live"?  It  seems  to  me  that  the  act  of  suspension  was  not  inten- 
ded to  be  permanent,  but  temporary,  in  its  duration  ;  but  I  very 
much  doubt  the  right  of  the  Presbytery  to  pass  such  an  act. 

No  authority  or  precedent  has  been  shown  for  it,  and  it  un- 
doubtedly rendered  the  Presbytery  amenable  to  the  discipline  of 
Synod;  but  I  cannot  think  that  it  was  such  an  act  of  absolute  sev- 
erance of  the  connection  between  the  congregations  represented  in 
the  Presbjtery  and  the  Synod  as  would  have  prevented  the  latter, 
in  the  exercise  of  its  original  jurisdiction,  from  dealing  in  the  way 
of  discipline  with  any  of  the  members  of  these  congregations  upon 
a  proper  case  being  shown  for  its  exercise. 

The  Synod  of  1869  did  proceed  to  deal  ■with  the  Presbytery, 
and  to  pass  sentence  against  it  for  this  act  of  insubordination,  for  it 
declared  it  to  be  without  the  jurisdiction  of  Synod — thus  severing 
the  connection  which  heretofore  existed  between  them.  This  act 
derives  its  whole  force  and  virtue  from  the  action  of  the  Synod.  It 
has  no  force  or  virtue  by  reason  of  the  action  of  the  Commission, 
for  the  reason  already  given.  And  so  •with  regard  to  the  resolu- 
tions declaring  Dr.  McMurray  and  Robert  Guy,  and  the  other 
persons  referred  to,  together  with  such  as  might  adhere  to  them, 
to  be  the  congregation.  If  it  has  any  force  or  binding  obligation, 
it  is  in  virtue  of  the  action  of  the  Synod.  It  may  have  been  com- 
petent for  Synod  to  recognize  and  declare  them  to  be  the  First 
Reformed  Presbyterian  Congregation  of  Philadelphia,  so  far  as  it 
respects  its  own  relations  to  them ;  but  it  could  not  invest  them 
with  the  rights  and  immunities  conferred  by  the  charter,  if  they 
had  previously  ceased  to  be  members  of  the  corporation  by  their 
voluntary  withdrawal  from  the  congregation  constituting  it. 

If,  therefore,  the  jury  find  that  the  relators,  and  that  portion  of 
the  old  congregation  which  they  represent,  were  not  excluded 
from  the  church  building,  or  deprived  of  the  privileges  of  meeting 
for  worship  there,  if  they  were  not  compelled  to  leave,  but  volun- 
tarily withdrew  and  had  ceased  to  be  members  of  the  corporation, 
before  the  action  of  the  Synod  of  1869,  declaring  the  Presbytery 
with  which  the  congregation  represented  by  the  defendants  was 
ecclesiastically  connected,  to  be  without  the  jurisdiction  of  Synod, 
then  the  defendants  are  entitled  to  a  finding  in  their  favor  on  all 
the  issues  raised  by  these  pleadings. 


116 

But  if  the  jury  find  that  that  portion  of  the  old  congregation 
represented  by  the  relators  constituted  a  majority  of  the  congre- 
gation, and  that  they  were  excluded  from  the  church  building,  and 
were  not  permitted  to  worship  there,  but  were  compelled  to  go 
elsewhere  and  organize  for  worship,  and  that  they  have  maintained 
their  organization,  and  that  the  relators  are  their  trustees,  duly 
elected,  then  your  verdict  should  be  for  the  Commonwealth. 

If  the  relators  left  because  they  were  not  allowed  to  have  charge 
of  the  temporalities  of  the  congregation  as  its  trustees,  they  mis- 
took their  remedy.  They  ought  to  have  remained  in  the  congre- 
gation and  sought  the  redress  which  the  law  would  have  given 
them. 

I  have  had  a  number  of  points  presented  to  me,  gentlemen, 
upon  which  I  have  been  requested  to  charge  you,  on  both  sides. 
In  so  far  as  the  points  are  not  answered  in  the  charge,  they  are 
declined. 

I  therefore  submit  this  case  to  your  careful  consideration  and 
determination,  under  the  instructions  which  have  been  given. 
You  have  listened  thus  far  patiently,  and  I  have  no  doubt  you 
will  deliberate  wisely  and  well,  and  render  a  just  and  proper  ver- 
dict. 


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